State, ex rel., Schrita O. v. Robert T., Concur in part and Dissent in part

11/16/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 2, 2017
STATE EX REL. SCHRITA O. v. ROBERT T.
Appeal from the Juvenile Court for Shelby County
No. Z4680 Dan H. Michael, Judge
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No. W2017-00073-COA-R3-JV
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FRANK G. CLEMENT JR., P.J. M.S., concurring in part and dissenting in part.
I concur in the majority’s decision in all respects but one. I respectfully disagree
with the majority’s decision to “vacate the trial court’s judgment as to the calculation of
retroactive child support and remand so that child support may be calculated based on the
actual number of days Father exercised parenting time.”
My dissent is founded on the general principle that the appellate court should not
search for error by the trial court when the issue is not properly raised by the parties.1 See
Tenn. R. App. P. 13(b); Bing v. Baptist Mem’l Hosp.-Union City, 937 S.W.2d 922, 924
(Tenn. Ct. App. 1996) (The appellate court may treat issues that are not raised on appeal
as being waived).
The State does not complain that Father should have been allocated less than
eighty days of parenting time in calculating child support and we have consistently held
that an issue not raised in a statement of the issues may be considered waived. Champion
v. CLC of Dyersburg, LLC, 359 S.W.3d 161, 163 (Tenn. Ct. App. 2011) (citing Regions
Fin. Corp. v. Marsh USA, Inc., 310 S.W.3d 382, 392 (Tenn. Ct. App. 2009)). Issues that
1
There are exceptions to this general principle. For example, the court may consider whether it
has subject matter jurisdiction even though none of the parties raise the issue. See Johnson v. Hopkins,
432 S.W.3d 840, 844 (Tenn. 2013) (Subject matter jurisdiction may be challenged at any time and may be
raised by a court on its own motion, even if the parties have not raised the issue). Moreover, the court
may consider whether a party has standing when none of the parties raise the issue. See In re Lyric A., No.
M2015-02468-COA-R3-PT, 2017 WL 4570492, at *1 (Tenn. Ct. App. Oct. 12, 2017). In Lyric A., the
parties did not raise the issue of standing in the trial court and, generally, the court of appeals will not
address issues not raised in the trial court. Id. (citing Simpson v. Frontier Cmty. Credit Union, 810
S.W.2d 147, 153 (Tenn. 1991)). “Nevertheless, because standing ‘is a component of subject matter
jurisdiction,’ Tenn. R. App. P. 13(b) requires us to consider it even if the trial court did not have the
opportunity.” Id. (quoting Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004)). Therefore, the court
afforded the parties the opportunity to submit supplemental briefs to address the issue of standing and
both parties timely filed supplemental briefs. Id.
are not raised in the trial court may also be deemed waived. See Tenn. R. App. P. 36(a);
Alexander v. Armentrout, 24 S.W.3d 267, 272 (Tenn. 2000) (“Additionally, we conclude
that the Court of Appeals erroneously relied upon the doctrine of equitable estoppel in
reversing the judgment of the trial court because the doctrine was not properly preserved
for appeal”). Because neither party contends that Father should have been allocated less
than eighty days of parenting time, I submit that we need not and, indeed, should not
consider whether Father should have been allocated less than eighty days of parenting
time in calculating child support.
The only issue raised by the parties that pertains to the calculation of retroactive
child support is, as correctly stated in the majority opinion, “Father argues that the
juvenile court erred in calculating child support by crediting Mother with 285 days of
parenting time.” Significantly, the State, acting on behalf of Mother and child, does not
contend that the trial court erred by allocating eighty days to Father for purposes of
setting parenting time. In fact, as the majority opinion correctly notes, the State expressly
asked the trial court to credit Father with eighty days of parenting time when calculating
child support. This fact is abundantly clear by the following colloquy between the trial
judge and the state’s counsel when determining child support:
The Court: Do you [have] the worksheet ready? See what we come up
with. It’s 365 and zero on the visitation, Mother’s income was $2901.50.
Father’s income $4,316. The mother gets a medical insurance expense—
The State: Your Honor, if I may, in most paternity matters, if paternity is
established, because there’s not been a legal right to visitation before
paternity is established, the Courts usually use standard visitation even if
the testimony is there hasn’t been any, because there was no legal right to
this—
The Court: Okay. You want me to do that so we can change that?
The State: Yes, Your Honor.
The Court: and 80 . . .
The foregoing reveals that the error, if any, in allocating eighty days of parenting
time to Father resulted from the State’s express request that the trial court allocate eighty
days of parenting time to Father. This is significant because Tennessee Rule of Appellate
Procedure 36(a) clearly states that: “Nothing in this rule shall be construed as requiring
relief be granted to a party responsible for an error who failed to take whatever action
was reasonably available to prevent or nullify the harmful effect of an error.”
For the foregoing reasons, I respectfully dissent form the majority’s decision to
“vacate the trial court’s judgment as to the calculation of retroactive child support and
remand so that child support may be calculated based on the actual number of days
Father exercised parenting time.” I concur in the majority decision in all other respects.
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FRANK G. CLEMENT JR., P.J., M.S.