Tracye Jenae Simpson (Brogden) v. Ralph Edward Simpson - Concurring and Dissenting ( 2006 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 22, 2006 Session
TRACYE JENAE SIMPSON (BROGDEN), ET AL. v.
RALPH EDWARD SIMPSON
Appeal from the Circuit Court for Hamilton County
No. D-55387 W. Neil Thomas, III, Judge
No. E2005-01725-COA-R3-CV - FILED JUNE 26, 2006
CHARLES D. SUSANO , JR., J., concurring in part and dissenting in part.
I concur in much of the judgment and rationale of the majority opinion. I agree with the
majority’s statement “that the five payments made directly to the child totaling $2,740 were
gratuitous or otherwise should not be considered as a credit against Father’s child support
obligation.” I also agree with the majority’s treatment of Father’s issues pertaining to (1) the trial
court’s refusal to permit Father to testify regarding child support payments made by him “when he
had no documentary evidence supporting the amount of those payments,” and (2) the trial court’s
award of attorney’s fees. However, I disagree with the majority’s judgment that Father should be
granted credit against his general $60 per week child support obligation to Mother for payments
made by him “at the direction of [Mother].”
Except in Title IV-D cases,1 court-ordered child support “shall be paid either to the clerk of
the court or directly to the spouse, or other person awarded the custody of the child or children.”
Tenn. Code Ann. § 36-5-101(c)(2)(A) (2005). In the instant case, the pertinent court order – the one
entered July 18, 1988 – provides that Father’s $60 per week child support payment is to be made to
the clerk of the trial court. While child support is clearly intended for the benefit of a child, see
Rutledge v. Barrett, 802 S.W.2d 604, 607 (Tenn. 1991), the payment of this obligation, by the terms
of § 36-5-101(c)(2)(A), is to be made, directly or indirectly, to the obligee parent or other custodian.
Father seeks credit for some $7,292.70 in payments, which, while clearly beneficial to the child, were
not required by court order and were not paid through the trial court clerk or directly to Mother. As
reflected in the majority opinion, $1,000 of this amount was for the child’s tuition; $1,633.60
represented payments on the child’s automobile; and $4,659.10 was paid by Father for insurance on
that vehicle. The issue is thus squarely presented: Can the subject payments be treated,
1
Payment of child support in Title IV-D cases is addressed at Tenn. Code Ann. § 36-5-101(c)(2)(A)(ii) (2005).
cumulatively, as a credit against Father’s child support arrearage growing out of his failure to pay
Mother all of the child support required by the trial court’s order of July 18, 1988?
The majority emphasizes the testimony of Father that “he made payments for support and
other necessary expenses at the direction of [Mother].” (Emphasis added). The thrust of the
majority opinion is to find in this testimony something that I do not find there, i.e., that Mother
agreed to give Father a credit for these payments against his $60 per week child support obligation
to her. There is no testimony that Mother ever made such a bargain.
The noun “direction” is related to the verb “direct.” The verb “direct” has been defined
thusly:
1. to manage or guide by advice, instruction, etc. 2. to regulate the
course of; control. 3. to administer; manage; supervise: She directs
the affairs of the estate. 4. to give authoritative instructions to;
command; order or ordain: I directed him to leave the room.
Webster’s Universal College Dictionary 227 (1997). (Bold numbering and emphasis in original).
As the word “direction” is used in Father’s testimony, the fourth definition of “direct” seems the
most appropriate. Accordingly, I will concede that the thrust of Father’s testimony is that Mother
commanded or ordered him to make the subject payments; but the fact that Mother commanded or
ordered him to do something – and that she did so without any real authority to issue such a
command or order – does not establish that Mother agreed to give him a credit against his $60 per
week general child support obligation to her. To me, it simply means she wanted him to make these
payments and “ordered” him to do so. It is not unusual, in a post-divorce setting, for one party to
order – not infrequently in a raised tone of voice – the other party to do something that the latter
party is not legally obligated to do. Unfortunately, such is one of the features of the all-too-frequent
acrimonious conversations between divorcing and divorced parties.
I do not believe we should place the trial court in error for not giving Father a credit against
his general child support obligation to Mother when the evidence does not preponderate against the
trial court’s determination that the subject payments made by Father were gratuitous. Father did not
have to make these payments; he chose to do so while, at the same time, choosing not to make
payments to Mother that he was obligated to make pursuant to a court order. I find no evidence of
a bargained for quid pro quo. Hence, I find no error in the trial court’s refusal to give Father the
credit requested by him.
The majority acknowledges that, in view of its holding, it did not need to reach Father’s other
ground for credit – the providing of necessaries that were not being provided by the custodian. My
review of the skimpy record before this court persuades me that the evidence does not preponderate
against a finding that Father failed to prove that the payments made by him, for which he seeks
credit, were for necessaries not being provided by Mother. See Peychek v. Rutherford, No. W2003-
01805-COA-R3-JV, 2004 WL 1269313, at *4-5 (Tenn. Ct. App. W.S., filed June 8, 2004). See also
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Duckett v. Duckett, No. 03A01-9506-CV-00198, 1996 WL 57943, at *3 (Tenn. Ct. App. E.S., filed
February 13, 1996); Sutton v. Sutton, No. 180, 1991 WL 16234, at *1 (Tenn. Ct. App. E.S., filed
February 12, 1991); Oliver v. Oczkowicz, 1990 WL 64534 at *2-3 (Tenn. Ct. App. M.S., filed May
18, 1990).
I would affirm the trial court’s judgment in its entirety. Accordingly, I concur in part and
dissent in part.
___________________________________
CHARLES D. SUSANO, JR., JUDGE
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