Susan (Rier) Metrolis v. Timothy William Rier ( 1995 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
_______________________________________________
SUSAN (RIER) METROLIS,
Plaintiff-Appellant,
Shelby Juvenile No. 51977
Vs. C.A. No. 02A01-9409-JV-00205
TIMOTHY WILLIAM RIER,
Defendant-Appellee.
_________________________________________________________________________
FROM THE JUVENILE COURT OF SHELBY COUNTY
THE HONORABLE KENNETH TURNER, JUDGE
FILED
December 5, 1995
Cecil Crowson, Jr.
Steven G. Roberts of Memphis Appellate C ourt Clerk
For Appellant
Herschel L. Rosenberg
Van Eaton & Rosenberg of Memphis
For Appellee
VACATED IN PART, AFFIRMED IN PART AND REMANDED
Opinion filed:
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
ALAN E. HIGHERS, JUDGE
DAVID R. FARMER, JUDGE
This appeal involves a juvenile court proceeding for child support.
Petitioner, Susan Rier Metrolis (Mother), filed a petition against Timothy William
Rier (Father) on October 28, 1993, seeking past, present, and future support for
their two minor children, Crystal and Lisa. The petition requests that "the
respondent should be ordered to contribute toward the support of said children
according to the respondent's means and the needs of said children and
reimburse the petitioner for the expenses of rearing the children with the
respondent's assistance."
After an evidentiary hearing, the juvenile court referee filed findings and
recommendations on June 29, 1994, and these findings and recommendations
were subsequently confirmed as the decree of the court. The decree ordered
Father to pay medical insurance and $493.50 per month for child support. The
decree also awarded Mother a judgment of $2,758.10 for child support
arrearages for the period beginning October 28, 1993, to the date of judgment.
Mother's request for support prior to October 28, 1993, was denied. Mother has
appealed, and the only issue for review is whether the juvenile court erred in
failing to award Mother a judgment for child support from January, 1983, to
October, 1993, based upon the child support guidelines.
This case first came under the jurisdiction of the Juvenile Court of Memphis
and Shelby County when Mother filed an Affidavit of Nonsupport in June, 1980.
Shortly thereafter, a warrant was issued for Father. Based upon the affidavit and
the finding of the court, Father was ordered to pay $35.00 per week for the
support of his minor child. In June, 1982, after their second child was born, the
order of support was increased to $250.00 per month. On November 3, 1982, the
parties were divorced by decree of the Circuit Court of Shelby County, and the
final decree stated that jurisdiction of custody and support would remain in the
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juvenile court.
In February, 1983, Father filed a petition in the juvenile court to decrease
child support payments. When Father attempted to serve Mother with process,
the summons was returned unserved with the notation, "Left notice, she says Mrs.
Rier is out of town." A second summons was issued and sent by certified mail to
Mother, but it is unclear whether Mother ever received this summons. By order
entered September 1, 1983, the juvenile court suspended Father's obligation to
pay child support under the order of June 15, 1982. In October, 1983, Father
filed a petition for the return of child support payments previously paid which
were being held by the clerk of the court. In November, 1983, an order was
entered directing that Father be repaid those sums.
On January 29, 1993, Mother filed a petition seeking to hold Father in
contempt of court based upon his failure to pay the child support ordered by
the juvenile court order of June 15, 1982. By order entered July 21, 1993, the
juvenile court found that the original juvenile court order of June 23, 1980, and
all subsequent orders were void, and the court dismissed Mother's petition for
lack of jurisdiction. No appeal was taken from this decision.
The petition in the instant case was filed October 28, 1993, and as
previously noted, seeks, among other things, reimbursement for child rearing
expenses incurred by Mother from January, 1983, to the present. Mother asserts
that the child support guidelines (guidelines) that were adopted by our Supreme
Court pursuant to Title IV-D of the Social Security Act, 42 U.S.C. §§ 651-655 (1991
and Supp. 1994), apply to this case and are appropriate for establishing the
child support for the period of 1983 to 1993.
We agree with Mother that the child support guidelines are applicable to
any action brought to establish or modify child support. See Townsend v.
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Thompson, No. 0ZA01-9211-JV-00321 (Tenn. App. Dec. 10, 1993). However, in the
present case we are not dealing with a modification of a prior support order,
because the support order in this case has been declared void by the court that
rendered it. The petition filed in this case seeks reimbursement "for the expenses
of rearing the children with the respondent's assistance." The juvenile court
properly considered the guidelines in establishing the future support
requirement. However, we do not feel that the guidelines are necessarily
controlling in ascertaining a figure for reimbursement of child-rearing expenses.
Father asserts that Mother is entitled to nothing because she absented
herself from the jurisdiction and because the juvenile court suspended its order
requiring Father to pay child support because Mother could not be located.
This perhaps would be a valid argument but for the fact that the juvenile court
has declared all of the orders in this cause void, and this declaration is final.
Therefore, there is no prior order of support, nor is there a prior order that
suspends the operation of the order of support. This case is essentially a suit
brought by Mother against Father to require Father to comply with the mandate
of T.C.A. § 34-1-101 (1991) and its successor T.C.A. § 34-11-102 (Supp. 1995),
which provides in pertinent part:
34-11-102. Parents as joint and equal natural
guardians of minors - Custody of minors - Support of
minors over eighteen in high school - Property of minor
- Incapacity of parents - Divorce - Commitment of
guardianship to county - Guardianship instrument. -
(a) Parents are the joint natural guardians of their
minor children, and are equally and jointly charged
with their care, nurture, welfare, education and
support and also with the care, management and
expenditure of their estates. Each parent has equal
powers, rights and duties with respect to the custody
of each of their minor children and the control of the
services and earnings of each minor child . . . .
The record reveals no pleading asserting any applicable statute of
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limitation and we see no reason why Mother should not be entitled to
reimbursement for a share of the expenses incurred in performing the joint
obligation of both parties.
It is uncontroverted that Father provided no support for the children from
January, 1983, to October, 1993, but there is no proof in the record concerning
the expenses incurred by Mother in supporting the children during this time.
Therefore, this appears to be a proper case for the application of T.C.A. § 27-3-
128 (1980) which provides:
27-3-128. Remand for correction of record. - The
court shall also, in all cases, where, in its opinion,
complete justice cannot be had by reason of some
defect in the record, want of proper parties, or
oversight without culpable negligence, remand the
cause to the court below for further proceedings, with
proper directions to effectuate the objects of the
order, and upon such terms as may be deemed right.
The juvenile court should consider the evidence concerning expenses incurred
for the care of the children during the period involved and consider the income
and economic condition of Father during the same period of time.
The decree of the juvenile court denying recovery of child support prior
to October 28, 1993, is vacated, and the case is remanded to the trial court for
further proceedings to determine the amount, if any, which Mother should be
reimbursed for child-rearing expenses she incurred during the period in issue.
The decree in all other respects is affirmed. Costs of the appeal are assessed
against appellee.
____________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
_________________________________
ALAN E. HIGHERS, JUDGE
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________________________________
DAVID R. FARMER, JUDGE
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