Ridley v. Ridley

IN THE COURT OF APPEALS OF TENNESSEE
DOROTHY RIDLEY, )
FILED
C/A NO. 03A01-9708-GS-00350
) January 13, 1998
Plaintiff-Appellant, )
)
Cecil Crowson, Jr.
)
Appellate C ourt Clerk
)
)
v. )
)
)
) APPEAL FROM THE BRADLEY
BARRY RIDLEY, ) COUNTY GENERAL SESSIONS COURT
)
Defendant, )
)
and )
)
)
RODNEY WHEELER and )
SANDRA WHEELER, )
)
Intervening Petitioners ) HONORABLE C. VAN DEACON,
-Appellees. ) JUDGE
For Appellant For Appellees Wheelers
DEBRA L. HOUSE NO APPEARANCE
Southeast Tennessee Legal Services
Cleveland, Tennessee
O P I N IO N
APPEAL DISMISSED
REMANDED Susano, J.
1
In this case, we must decide if the order of the trial
court, from which this appeal is being pursued, is properly
before us. Our review of the record persuades us that it is not.
The parties Dorothy Ridley and Barry Ridley were
divorced by judgment entered June 18, 1986. The record reflects
a number of post-judgment filings, most of which are not germane
to this appeal. What is relevant is the fact that the custody of
one of the parties’ children, Wayne Joseph Ridley (DOB: November
5, 1981), was placed with Rodney Wheeler and Sandra Wheeler in
May, 1996. When this occurred, the appellant, Dorothy Buckner,
the former Dorothy Ridley, was ordered to pay the Wheelers child
support of $35 per week.
On May 16, 1996, Dorothy Buckner filed a “Petition to
Modify Child Support.” In the petition, she asserted that her
sole income consisted of $352 per month in the form of
Supplemental Security Income (SSI). She argued in her petition,
and contends here, that SSI cannot be considered in determining
income for the purpose of setting child support under the Child
Support Guidelines promulgated pursuant to T.C.A. § 36-5-
101(e)(2).
The record reflects that the trial court held hearings
regarding the appellant’s petition on May 24, 1996, October 11,
1996, and November 22, 1996. Following each hearing, the trial
court “suspended” the appellant’s child support obligation. The
orders memorializing the first two hearings are each captioned
“Interlocutory Order.” The order entered following the last
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hearing on November 22, 1996, is captioned “Final Order.” It is
from that order, which was entered February 21, 1997, that Ms.
Buckner is seeking to appeal. The order of February 21, 1997, is
attached as an appendix to this opinion.
In general terms, the Rules of Appellate Procedure
recognize four possible “avenues” of appeal from a trial court’s
judgment: an appeal as of right from a “final” judgment under
Rule 3(a), T.R.A.P.; an appeal as of right from a judgment
designated by the trial court as a final judgment under Rule
54.02, Tenn.R.Civ.P.; an “interlocutory appeal by permission” as
authorized by Rule 9, T.R.A.P.; and an “extraordinary appeal by
permission” under Rule 10, T.R.A.P.
The order of February 21, 1997, is not a final judgment
appealable as of right under Rule 3(a), T.R.A.P., despite the
caption placed on that order by the trial court. While that
order granted the appellant some relief -- that the child support
would “continue to be suspended” -- it clearly held in abeyance
her request that she be extricated from her child support
obligation in toto. It is obvious from the order that something
remains to be done before the trial court will finally act on the
appellant’s petition. This can be seen from paragraph 4 of the
order, which provides that the appellant “needs to provide proof
of the assessment from the Department of Rehabilitation.” The
order, considered as a whole, reflects that the trial court still
has before it the appellant’s request to terminate child support.
It has not yet finally decided the issues raised by the petition.
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We hold that this order is not appealable as of right under Rule
3(a), T.R.A.P.
The trial court has attempted to make the order of
February 21, 1997, a final order. Paragraph 5 of the order --
“this shall be a Final Order for all purposes under the Tennessee
Rules of Civil Procedure” -- clearly reflects the trial court’s
intention. However, the trial court’s declaration cannot convert
an interlocutory order into a final order unless such a
conversion is authorized by Rule 54.02, Tenn.R.Civ.P. That rule
only applies to cases involving multiple claims and/or multiple
parties. In the instant case, there is one claim against two
individuals -- the Wheelers; but, that one claim pertains to a
single obligation -- child support -- that is payable to those
two individuals as a unit. Since this case involves only one
claim and does not involve claims against multiple parties, Rule
54.02, Tenn.R.Civ.P., does not apply. In view of the fact that
the authority of a trial court to designate an interlocutory
order as a final order is limited to factual scenarios falling
within the language of the rule, the designation by the trial
court in the instant case is not sufficient to make the instant
order appealable as of right under Rule 54.02.
Before an interlocutory order can be appealed under
Rule 9, T.R.A.P., a party seeking such an appeal must timely file
a request in the trial court under the provisions of subsection
(b) of the rule. Only if the trial court acts favorably on that
application, and states “in writing the reasons” for doing so, is
an appellate court authorized under the rule to grant an appeal
4
by permission. The requirements of subsection (b) of the rule
were not complied with in this case. While we are authorized to
suspend the requirements of Rule 9, we are not inclined to do so
in this case. See Rule 2, T.R.A.P.
Rule 10, T.R.A.P., authorizes an appeal by permission
(1) if the lower court has so far departed
from the accepted and usual course of
judicial proceedings as to require immediate
review, or (2) if necessary for complete
determination of the action on appeal as
otherwise provided in these rules.
We do not find a basis for such an appeal in this case.
When a true final judgment has been entered in this
case, finally disposing of the appellant’s petition, she will
then be in a position to appeal as of right under Rule 3(a)
should she choose to do so. The trial court is encouraged to
expeditiously consider the appellant’s petition so that a final
judgment can be entered as soon as possible. In addressing the
appellant’s petition, the trial court should consider the holding
of this court in the case of State ex rel. Holder v. Holder, C/A
No. 03A01-9105-GS-00156, 1991 WL 195068 (Court of Appeals at
Knoxville, October 3, 1991). (“The court is not at liberty to
consider SSI benefits in determining and setting a parent’s
support obligation.” 1991 WL 195068 at *6.)
This appeal is dismissed at the appellant’s costs.
This case is remanded to the trial court for such further
proceedings as may be necessary, consistent with this opinion.
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__________________________
Charles D. Susano, Jr., J.
CONCUR:
______________________
Herschel P. Franks, J.
______________________
Don T. McMurray, J.
6