Bondy v. Martin ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
BRENDA BONDY,
FILED
)C/A NO. 03A01-9609-JV-00310
)
Petitioner-Appellant, ) April 25, 1997
)
) Cecil Crowson, Jr.
) Appellate C ourt Clerk
) APPEAL AS OF RIGHT FROM THE
) MONROE COUNTY JUVENILE COURT
v. )
)
)
)
ARNOLD WAYNE MARTIN, )
) HONORABLE EDWIN C. HARRIS,
Respondent-Appellee. ) JUDGE
For Appellant For Appellee
CHARLES E. RIDENOUR RANDY G. ROGERS
Sweetwater, Tennessee Athens, Tennessee
OPINION
VACATED IN PART
AFFIRMED IN PART
REMANDED Susano, J.
1
This is a paternity case. After blood tests showed a
99.999% probability of paternity, the defendant Arnold Wayne
Martin (Father) acknowledged that he is the father of Melissa
Gail Dixon, age 16. Based upon Father’s acknowledgment, the
trial court entered a judgment of paternity. As pertinent to
this appeal, the trial court also ordered Father to pay the
plaintiff Brenda Bondy (Mother) child support of $63 per week,
effective November 21, 1995, the date on which the petition in
this case was filed. Mother appealed, arguing that the trial
court should have awarded her support back to August 3, 1979, the
child’s date of birth. She also argues that the trial court’s
award of fees for her counsel is inadequate. Finally, she seeks
fees for services rendered by her attorney on this appeal.
In a paternity case, a trial court “has broad
discretion to determine the amount of . . . a retroactive award
of [child support], as well as the manner in which it is to be
paid.” State ex rel. Coleman v. Clay, 805 S.W.2d 752, 755 (Tenn.
1991).
In the instant case, it appears that the trial court
did not properly exercise its discretion. Mother’s petition that
Father be ordered to “pay child support, beginning August 3,
1979" was met by the following finding and decree in the trial
court’s judgment:
That there has, prior to the date of this
hearing, been no Order of support placed
against the respondent and that no arrearage
of support exists because no Order has ever
been entered establishing paternity or
obligation of support and that, therefore,
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the Court finds that no arrearage exists,
none is owed and therefore, none is forgiven
or reduced.
The trial court, instead of exercising its discretion and
determining whether child support back to the date of birth was
or was not appropriate and, if so, in what amount, instead
refused to order any back child support simply because “no Order
[had] ever been entered establishing paternity or obligation of
support.” This was not the appropriate criteria upon which the
trial court should have made this discretionary determination.
The appropriate standard is set forth in the State ex rel.
Coleman case:
. . . the statute gives the juvenile court
the discretion to order a retroactive support
award back to . . . [the] date [of the
child’s birth], the amount and method of
payment to be determined by the [trial judge]
in light of the circumstances of the case and
consistent with the standards which normally
govern the issuance of child support orders.
(citation omitted).
805 S.W.2d at 755.
Since the trial court failed to exercise its discretion
pursuant to the appropriate standard, we find an abuse of that
discretion and conclude that it is necessary to vacate so much of
its judgment as provides that Mother is not entitled to any
support prior to the date of filing of the petition. We express
no opinion as to whether retroactive child support is appropriate
in this case. Our holding in this case is a limited one: a trial
court cannot refuse to award retroactive child support simply
3
because an order was not entered covering the period for which
back support is requested.
As to the second issue raised by Mother, we do not find
that the evidence preponderates against the trial court’s award
of attorney’s fees of $1,000 for services rendered prior to the
filing of the notice of appeal. See Rule 13(d), T.R.A.P. There
is nothing in the record reflecting the nature and extent of the
services rendered by plaintiff’s counsel.
Mother’s petition for attorney’s fees for services
rendered on this appeal is remanded to the trial court for its
consideration. See Folk v. Folk, 357 S.W.2d 828 (Tenn. 1962).
Except as vacated herein, the trial court’s judgment is
affirmed. On remand, the trial court is directed to exercise its
discretion with respect to the issue of back child support,
pursuant to the holding in State ex rel. Coleman v. Clay, 805
S.W.2d 752 (Tenn. 1991). It is also directed to consider
Mother’s application for fees for her counsel for services
rendered on this appeal. Costs on appeal are assessed against
the appellee.
_________________________________
Charles D. Susano, Jr., J.
4
CONCUR:
________________________________
Houston M. Goddard, P.J.
________________________________
Don T. McMurray, J.
5