Steve Anthony Contreras v. Kimberly Dawn Contreras (Hinson)

07/25/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 2, 2018
STEVE ANTHONY CONTRERAS V. KIMBERLY DAWN CONTRERAS
(HINSON)
Appeal from the Chancery Court for Henderson County
No. 14974 James F. Butler, Chancellor
No. W2018-00093-COA-R3-CV
The father in this post-divorce dispute challenges the trial court’s determinations
regarding his child support arrearage, medical insurance premiums, credits against the
arrearage, and attorney fees. Finding no merit to father’s arguments, we affirm the trial
court’s decision.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and JOHN W. MCCLARTY, J., joined.
George Michael Casey, Jr., Jackson, Tennessee, for the appellant, Steve Anthony
Contreras.
Samuel Wayne Hinson, Lexington, Tennessee, for the appellee, Kimberly Dawn
Contreras (Hinson).
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Kimberly Dawn Contreras (“Mother”) and Steve Anthony Contreras (“Father”)
married in 1986 and divorced in 2003. The trial court named Mother the primary
residential parent of the parties’ three minor children, and Father was ordered to pay child
support in the amount of $721.00 per month by wage assignment and to maintain health
insurance for the minor children. The parties were to equally divide the children’s
medical expenses not covered by insurance. In the February 14, 2003 divorce decree, the
trial court specified that the final disposition of certain issues as to property division and
support were to be reserved for a future hearing. The court addressed some of the
outstanding issues in a February 2004 order, including entering a judgment of $2,169.00
for back child support in arrears on April 24, 2003.1
On May 19, 2014, Father filed a Complaint to Terminate Child Support Obligation
and to Receive Credit for Necessary Expenses Paid. The parties’ youngest child,
Michael, graduated from high school on May 16, 2014, and Father requested that the
wage assignment order be terminated after the May 2014 child support payment. Father
acknowledged that he owed a significant child support arrearage, but asserted that he was
entitled to a credit for payments he made on a prepaid debit card in the amount of
$17,088.00. Father further alleged that Michael lived with him in Texas from June 2009
through June 2010, “during which time he paid all of the child’s living expenses, with no
support from [Mother].” Father asserted that he should receive credit for the year the
child lived with him in Texas at the rate of $721.00 per month, for a total of $8,652.00.
Mother filed a pro se response to Father’s complaint on June 9, 2014, stating that
Father never provided health insurance for the three children as required in the divorce
decree. She further alleged that Michael, age thirteen (13), went to visit Father for the
summer in June 2009 and that Father did not send him back to Mother at the end of the
summer. Mother attempted to secure the child’s return, but she did not know Father’s
location. At the end of the school year, Michael was ready to come back to Mother’s
house. Mother prayed for judgment against Father for the cost of providing health
insurance for the three children in the amount of $23,960.00. She further requested that
Father be ordered to make monthly payments of $721.00 or a lump sum payment of
$40,000.00 to cover his child support arrearage and to pay court costs and attorney fees.2
This matter was tried on April 16, 2015. Father testified that, in 2005, he and
Mother decided that a debit card would be a convenient way for him to send child support
to her from Texas. He admitted being aware that he was supposed to make child support
payments through the court. According to Father, one reason Mother agreed to his use of
the debit card was that Mother’s fiancé or husband “was involved with drugs or alcohol,
and it was just—for whatever reason, she said it worked that way, so I agreed with her.”
Father testified that he thought he put money on the debit card instead of paying child
support through the court for about five years or “whatever the records reflect.” He
introduced into evidence bank records showing the payments he put on the debit card.
1
The hearing on the reserved issues was originally held on April 24, 2003, before Chancellor Joe Morris.
Prior to the entry of an order from that hearing, Chancellor Morris passed away. Chancellor Ron
Harmon, sitting by interchange, held another hearing on January 7, 2004, and signed the order entered on
February 17, 2004. On October 17, 2006, the trial court entered an order of dismissal without prejudice
for failure to prosecute as to any remaining issues.
2
The Department of Human Services issued an administrative order on July 15, 2014, terminating
Father’s current child support obligation but ordering him to pay down the arrearage at the rate of $771.00
per month beginning on July 1, 2014.
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Father further testified that his son, Michael, lived with him in Texas from June
2009 through May 2010. At that time, the other two children had reached the age of
majority. Father was still under a court order to pay $721.00 per month in child support
as there had been no modification of the original child support order. He paid Mother no
child support during that year. Father requested credit for at least what he was to have
been paying Mother in child support for that year.
On cross-examination, Father testified that Mother had initially agreed for the
debit card to be in the name of their eldest daughter, Jacqueline. Later, they agreed that
he needed to add a card for Stephanie. Father stated that Mother did not want her own
card. He admitted that there were often fees associated with use of the debit cards.
Father’s next witnesses were the three children. Jacqueline testified that Mother
knew about the debit cards Father gave to her and Stephanie. Jacqueline used her debit
card to buy gas for the car she used to drive herself and her brother and sister around
town. She could not recall what else she bought with the card. Jacqueline also testified
as follows:
Q. Okay. Did your mom buy all of you-all’s clothes and groceries and
things like that?
A. Yeah. She provided for us.
Q. Did your dad provide for you?
A. I want to say he did, yeah. Definitely, yeah. He gave us a card that had
money on it. We would do stuff with it. He would provide that.
On cross-examination, Jacqueline stated that Father gave her the debit card directly and
that there were no limitations on how she used the money. Jacqueline was giving Mother
her checks from work to pay for Jacqueline’s car and car insurance. Mother gave
Jacqueline money and provided her with food, clothing, housing, and utilities.
Michael testified about his sisters’ use of the debit cards. He stated that he had
never had a debit card but was sometimes present when one of his sisters used a card to
give him money. Michael would use the money to get food with friends. Michael also
saw his sisters use their cards to buy food at restaurants and clothing; he remembered that
they used a card to buy shoes for him once. Michael further testified that he lived with
Mother’s husband, Steve Hinson, for a period of time and that Mr. Hinson drank “most of
the day.” On cross-examination, Michael agreed that there was food at home, that
Mother bought them clothes, and that they had a home to live in with utilities.
Stephanie testified by telephone from Texas and recalled that, during the time
period from 2005 through 2009, Jacqueline had a debit card in her name and Mother
knew about the card. According to Stephanie, she, Jacqueline, and Mother used the card
to buy food and clothes, or “anything I needed for sports or that [Michael] needed for
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sports.” Stephanie stated that Mother would ask the children to ask Father to put money
on the card. She also testified that Mother would borrow the card and use it herself.
When asked, Stephanie stated that Mr. Hinson drank.
On cross-examination, Stephanie testified that she currently lived in Texas and
received financial help from Father for books and other things when she needed
assistance. During the time period in question, she reiterated that the children would call
Father when they needed something and he would put money on the debit card. She
acknowledged that they were living with Mother and she provided them with a home,
clothes, and food. Stephanie gave the following testimony:
Q. So these things, maybe, that were being put on the card were, maybe,
extra things you wanted or additional things?
A. Yes, ma’am.
Q. Okay.
A. Yes, ma’am. Uh-huh.
Q. You would not have gone without if it were not for the card, would
you?
A. No, ma’am.
Q. And the card enabled you to kind of spend freely, didn’t it?
A. Yes. We would get extra, like, for sports, or, you know, things like that,
yeah.
Q. Your extracurricular activities?
A. Correct.
Q. And the ability to go through, maybe, Sonic or Dairy Queen?
A. Right.
Q. But, of course, like you said, Mom did have food for you at home;
right?
A. Yes. Yes, she did.
Q. It wasn’t your only source of eating?
A. No, ma’am. Uh-uh.
Father rested his case and Mother testified next. She stated that Father did not
provide health insurance as ordered by the court in the 2003 divorce decree. Mother
provided health insurance for the children through her work and through Farm Bureau
and introduced evidence establishing the costs she incurred to provide health insurance
for them. When she worked at SERVPRO from May 2003 through September 2004,
health insurance for the children totaled $1,344.96. She then worked at Apria from April
of 2005 through February 2007, and the cost of health insurance for the children during
this period was $4,395.60. Mother worked at First State Bank from June 2008 through
May 2014, when she was providing health insurance only for Michael; the cost for this
period was $2,694.84. Mother also had coverage on Michael through a private plan at
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Farm Bureau from August 2010 until he graduated from high school at a cost of
$3,927.00.
Mother further testified that Father did not pay child support as ordered and that
she made efforts to collect child support through the child support enforcement office.
Mother did not have Father’s address and the child support office could not locate him.
In 2008, she began receiving child support payments from Father through the child
support receipting unit in Nashville. As to the debit card, Mother testified that she never
agreed to receive child support on a card. She knew that Father was putting money on a
card for the children, but that was not a substitute for child support. Mother had her own
debit card on her own bank account. Mother had no control over how the children spent
the money on the debit card or how much money Father put on the card. She provided
the children with the necessities, including housing, food, utilities, and medical care.
There were times when she had to ask her parents for help. Mother provided a record of
all of the child support payments she had received since January 2003.
Mother testified that, in June 2009, Michael went to visit Father for the summer.
Right before school was to start, Mother received a phone call from Michael and Father
stating that Michael was not coming home. Michael was about to enter the eighth grade.
Mother objected; she went to the police department to see what she could do, but they
could not find him. Mother went to the child support office. She basically hit a dead end
and decided to drop the matter. Michael returned to Mother the following year, “but he
was regretful for the year he spent in Texas.”
In an order entered on August 6, 2015, the trial court awarded Mother a judgment
against Father for child support arrears in the amount of $93,765.37, which included
interest on each payment from the date it became due until May 31, 2014, and for
medical insurance premiums in the amount of $12,362.40. Both of these amounts were
subject to post-judgment interest. The trial court further awarded Mother attorney fees in
the amount of $2,500.00 and court costs. The trial court appointed the clerk and master
as a special master to determine from Father’s bank records the amounts placed on the
debit cards between 2005 and May 1, 2007; the amounts placed on Stephanie’s debit card
between June 1, 2007 and May 2008; and the items that were bought with the debit cards
during these two time frames “so that the Court may determine any credits . . . to be
awarded to the Father against his child support arrears.” The court directed the special
master to report her findings to the court “within a reasonable period of time after she has
the opportunity to meet with counsel and/or the parties, or both.” The court would then
determine, “[w]ithin a reasonable period of time, not to exceed sixty days,” how much, if
any, credit Father was entitled to receive.
Father filed a motion to alter or amend the trial court’s August 6, 2015 judgment.
After the hearing, Father issued a subpoena duces tecum to the attorney general’s office
for Father’s child support file, and the State’s records showed a total child support
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arrearage of $28,149.61 as of May 30, 2015, significantly less than Mother’s figure of
$43,228.61. Father asserted that “the portion of the Court’s Judgment setting his arrears
at $93,765.37 should be altered or amended to reflect what he truly owes in child support
arrears.” He further argued that Mother did not serve him with a counter-complaint for
health insurance premiums and that the portion of the court’s judgment awarding her
health insurance premiums should be altered or amended. Father also asserted that the
trial court’s award of attorney fees against him should be eliminated and that the trial
court failed to rule upon Father’s request for attorney fees. Furthermore, Father alleged
that the clerk and master, Leigh Milam, had a personal relationship with Mother and that
an outside third party should be appointed to act as special master. Mother responded in
opposition to Father’s motion to alter or amend.
A hearing on Father’s motion to alter or amend was held on October 1, 2015.
Father produced a document signed by Mother appearing to be a declaration of arrears
owed by Father; it was sworn to by Mother on February 27, 2008. The affidavit stated
that the arrears as of that date were $36,050.00. The trial court noted that Father did not
present this evidence at trial. As stated in the trial court’s letter ruling entered with its
order denying the motion to alter or amend on December 17, 2015, “Mother pointed out
at the hearing that the state records were disputed all along . . . .” The trial court rejected
Father’s challenges regarding the health insurance premiums: “This issue was not
brought up at the trial, Mother’s presentation of testimony concerning this issue was not
objected to, and it was in fact an issue tried by acquiescence of the parties.” The court
likewise rejected Father’s arguments regarding the award of attorney fees and costs to
Mother and the appointment of a different special master. The issue of whether Father
should be awarded any attorney fees would be decided after the court’s review of the
report of the clerk and master. Therefore, the trial court denied Father’s motion to alter
or amend the judgment in an order and adopted the findings of fact and conclusions of
law contained in its letter ruling.
The special master filed her report on February 4, 2016, along with spreadsheets
and other documents. In a letter ruling entered on April 25, 2017, the court found that the
credits claimed by Father for the two daughters were “[n]ot proven to be necessaries
which Mother failed or refused to provide.” Furthermore, there was “no evidence that
any of the monies on the debit cards were provided to the Mother to pay for necessities.”
The court also addressed the period during which Michael lived with Father in Texas and
concluded that “Mother did not refuse to provide necessaries for the child, but was
deprived of the opportunity to do so.” Moreover, “Father was in violation of the
parenting Order and parenting schedule and should not be allowed to profit because of
such willful violation.” The court found that, by the time Father filed his petition in May
2014, the six-year statute of limitations had run on his claim for credit for necessaries
accruing prior to May 2008, when his daughters were both adults and had both graduated
from high school. The trial court denied Father’s claim for credit for necessaries.
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In a final order dated December 14, 2017, the trial court summarized all of its
previous findings, including a judgment of $93,765.37 in child support arrears in addition
to $12,362.40 as reimbursement for insurance premiums. These judgments were both to
draw interest at 12% per year through April 16, 2017, because they were both “for child
support or in the nature of child support.”
On appeal, Father argues that the trial court erred in: (1) awarding Mother a
judgment for $93,765.37 in child support arrears, (2) awarding Mother $12,362.40 for
health insurance premiums, (3) awarding Mother $2,500.00 for attorney fees, (4) its
assessment against Father of court costs paid by Mother, (5) failing to award Father credit
for necessaries provided through debit cards given to the parties’ daughters, and (6)
failing to award Father credit for the time the parties’ son lived with him.
STANDARD OF REVIEW
We review a trial court’s findings of fact de novo with a presumption of
correctness unless the evidence preponderates otherwise. TENN. R. APP. P. 13(d); Church
v. Church, 346 S.W.3d 474, 481 (Tenn. Ct. App. 2010). Evidence does not preponderate
against a trial court’s finding of fact unless it “support[s] another finding of fact with
greater convincing effect.” Milledgeville United Methodist Church v. Melton, 388 S.W.3d
280, 285 (Tenn. Ct. App. 2012). Because a trial court is in a better position to observe a
witness’s demeanor as he or she testifies, a trial court is “accorded significant deference
in resolving factual disputes when the credibility of the witnesses is of paramount
importance.” Davis v. Davis, 223 S.W.3d 233, 238 (Tenn. Ct. App. 2006) (citing Wells v.
Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999)). A trial court’s conclusion of law
enjoys no presumption of correctness, however, and we review all issues of law de novo.
ABN AMRO Mortg. Grp., Inc. v. S. Sec. Fed. Credit Union, 372 S.W.3d 121, 126 (Tenn.
Ct. App. 2011); Estate of Darnell v. Fenn, 303 S.W.3d 269, 275 (Tenn. Ct. App. 2009).
ANALYSIS
I. Arrearage amount.
Father’s first argument is that the trial court erred in calculating his child support
arrearage and in awarding Mother a judgment for $93,765.37 in child support arrears.
We review determinations related to child support under an abuse of discretion standard.
State ex rel. Lytle v. Webb, No. M2017-01137-COA-R3-CV, 2018 WL 2304273, at *4
(Tenn. Ct. App. May 21, 2018); see also Richardson v. Spanos, 189 S.W.3d 720, 725
(Tenn. Ct. App. 2005).
Father first makes a procedural argument, which he repeats with respect to
subsequent issues. He asserts that Mother’s pro se response to Father’s petition did not
constitute a “legally recognizable pleading” sufficient to “establish arrears, assess
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interest, or anything else.” According to Father’s argument, Mother failed to comply
with Tenn. R. Civ. P. 7.013 and “should have been prevented from requesting a judgment
for child support arrears and interest, based upon her failure to file an affirmative
pleading.”
The trial court rejected Father’s argument at trial, and we likewise find it to be
without merit. In her response to Father’s petition, Mother alleged that Father had failed
to pay his child support and requested that he be ordered to pay his child support
arrearage. Pursuant to Tenn. R. Civ. P. 8.05(1), “No technical forms of pleading or
motions are required.” “[T]he primary purpose of pleadings is to provide notice of the
issues to the opposing party and court.” Webb v. Nashville Area Habitat for Humanity,
Inc., 346 S.W.3d 422, 426 (Tenn. 2011); see also Swearengen v. DMC-Memphis, Inc.,
488 S.W.3d 774, 777 (Tenn. Ct. App. 2015). Mother’s response gave Father notice that
she was requesting an award for Father’s child support arrearage. Prejudgment interest is
required by statute. See Tenn. Code Ann. § 36-5-101(f)(1).
Father next asserts that the trial court erred in its determination of the amount of
his arrearage. At the hearing in April 2015, Mother introduced Exhibit 10, a spreadsheet
showing the amount of child support due each month, the amount paid each month, the
amount of interest on each payment multiplied by the number of months due, calculated
interest, and the balance due for each monthly payment including accrued interest.
Exhibit 10 showed a total balance due through May 1, 2014 (the date when child support
was no longer required) of $93,765.37. While generally objecting to Mother’s arrearage
calculation, Father offered no contrary evidence or proof of payments he had made.
After the trial court entered its August 6, 2015 judgment for a child support
arrearage of $93,765.37, Father filed a motion to alter or amend supported by records
from the State’s child support office showing Father’s child support arrearage to be
$28,149.61 as of May 30, 2015. The purpose of a motion to alter or amend a judgment
“is to provide the trial court with an opportunity to correct errors before the judgment
becomes final.” In re M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005). The motion
should be granted in the following circumstances: (1) “to correct a clear error of law or to
prevent injustice,” (2) if the law changes before the judgment becomes final, or (3) if
additional evidence becomes available that was previously unavailable. Id. We will not
reverse the trial court’s ruling on a motion to alter or amend unless we find the trial court
abused its discretion. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). A trial court
abuses its discretion when it applies an incorrect legal standard and causes an injustice,
reaches a conclusion that is illogical, or resolves a case “‘on a clearly erroneous
assessment of the evidence.’” Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn.
3
Tennessee Rule of Civil Procedure 7.01 states, in pertinent part: “There shall be a complaint and an
answer; and there shall be a reply to a counterclaim denominated as such; . . . . No other pleading shall be
allowed, except that the court may order a reply to an answer or to a third-party answer.”
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2010) (quoting Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)). A
reviewing court may not substitute its judgment for that of the trial court when reviewing
a decision under the abuse of discretion standard. Id.Father argues that the trial court erred in failing to have an evidentiary hearing on
his motion to alter or amend in order to resolve apparent discrepancies between the
State’s records and Exhibit 10. The trial court held a hearing on Father’s motion to alter
or amend and admitted into evidence the State’s complete child support file in this case.
These records included an affidavit signed by Mother on February 27, 2008, stating that
Father’s arrearage as of that date was $36,050.00. This figure does not include interest.
The trial court’s judgment was based upon a principal arrears figure of $43,228.61. In its
letter ruling explaining its decision to deny Father’s motion, the trial court noted that
“Father did not have this evidence at the trial” and that his “evidence does not include the
entire year of 2003.”
The parties had a full and fair opportunity to litigate the arrearage issue at the
April 2015 hearing, and we find no abuse of discretion in the trial court’s denial of
Father’s motion to alter or amend. Moreover, the evidence does not preponderate against
the trial court’s determination of the arrearage amount.
II. Insurance premiums.
Father argues that the trial court erred in awarding Mother $12,362.40 for the
children’s health insurance premiums.
He begins with the same procedural argument that he made above—that Mother
failed to make a “legally recognizable pleading” requesting health insurance premiums.
In her response, Mother stated that the divorce decree required Father to provide health
insurance for the children and that he failed to do so, and she prayed “that she be awarded
judgment against [Father] and reimbursed for providing health and hospitalization
insurance for the three children . . . .” For the same reasons discussed in section I, we
find no merit in Father’s procedural argument. Moreover, we decline to continue to
address the same issue with each argument.
The only basis for Father’s argument that the trial court erred in ordering Mother
to be reimbursed for the cost of the children’s health insurance premiums is that Mother
never “attempted to collect medical insurance premiums from the Father or sought the
[aid] of the court in having the Father provide the insurance.” No such requirement
exists. The original divorce decree required Father to provide the children with health
insurance. Because Father failed to do so, Mother bought health insurance for the
children. In her response to Father’s petition, Mother asked the court to reimburse her for
the cost of providing health insurance for the children. The court acted properly in
entering judgment for Mother in the amount of $12,362.40.
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III. Attorney fees.
Father argues that the trial court erred in awarding Mother $2,500.00 to cover a
portion of her attorney fees.
The governing statute is Tenn. Code Ann. § 36-5-103(c) (2015):
The plaintiff spouse may recover from the defendant spouse, and the spouse
or other person to whom the custody of the child, or children, is awarded
may recover from the other spouse reasonable attorney fees incurred in
enforcing any decree for alimony and/or child support, or in regard to any
suit or action concerning the adjudication of the custody or the change of
custody of any child, or children, of the parties, both upon the original
divorce hearing and at any subsequent hearing, which fees may be fixed
and allowed by the court, before whom such action or proceeding is
pending, in the discretion of such court.
This provision specifically authorizes an award to the spouse to whom custody is
awarded for “attorney fees incurred in enforcing any decree for alimony and/or child
support.” Tenn. Code Ann. § 36-5-103(c). In her response to Father’s petition, Mother
sought to enforce the decree for child support, thus bringing her efforts within Tenn.
Code Ann. § 36-5-103(c). In cases that involve issues pertaining to child custody and
child support, a decision to award attorney fees is within the discretion of the court. Tenn.
Code Ann. § 36-5-103(c); Irvin v. Irvin, No. M2016-02540-COA-R3-CV, 2018 WL
324453, at *8 (Tenn. Ct. App. Jan. 8, 2018).
We find no abuse of discretion in the trial court’s decision to award Mother
$2,500.00 in attorney fees.
IV. Court costs.
Father asserts that the trial court erred in awarding Mother her court costs incurred
in this case. Father’s only argument here (other than the procedural argument already
addressed above) is that Mother presented no evidence that she paid any court costs and
that she did not request court costs at trial. The latter point is without merit. In her
response to Father’s petition, Mother requested “that the court cost . . . incurred in this
action be paid by [Father].” In its August 6, 2015 order, the court stated that “court costs
paid by the Mother at the filing of this case be assessed against Father.” If, as Father
alleges, Mother paid no court costs, no court costs will be assessed against him.
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V. Credit for necessaries.
Finally, Father argues that he is entitled to two types of credit on his child support
arrearage: (1) for the payments made on the debit card provided to the children, and (2)
for the time when his son lived exclusively with him in Texas.
Tennessee Code Annotated section 36-5-101(f)(1) (2014) provides that an order
for child support “shall not be subject to modification as to any time period or any
amounts due prior to the date that an action for modification is filed . . . .” Thus, as a
general rule, “an obligor parent is not given credit for child support payments made in a
manner other than that specified in the operative child support order.” Smith v. Smith,
255 S.W.3d 77, 83 (Tenn. Ct. App. 2007). The courts have recognized an exception to
this rule when a parent provides necessaries for a child:
In Oliver [v. Oczkowicz, No. 89-396-II, 1990 WL 64534 (Tenn. Ct. App.
May 18, 1990], this Court allowed “a credit for voluntary payments made
on behalf of the children only where the payment is for the children’s
necessaries which are not being supplied by the custodial parent.” Id., 1990
WL 64534 at *2. “The obligation to provide necessaries requires the
provision of appropriate food, shelter, tuition, medical care, legal services,
and funeral expenses as are needed.” Peychek [v. Rutherford, No. W2003-
01805-COA-R3-JV, 2004 WL 1269313, at *4 (Tenn. Ct. App. June 8,
2004)]. “In order to maintain a successful claim for necessaries, [Father]
‘must prove: (1) that the child needed the particular goods or services that
were provided, (2) that [Mother] had a legal obligation to provide the goods
or services, (3) that [Mother] failed to provide the goods or services, and
(4) the actual cost of these goods or services.’” Id. (quoting Hooper v.
Moser, M2001-02702-COA-R3-CV, 2003 WL 22401283, at *3 (Tenn. Ct.
App. Oct. 22, 2003)). The rationale is that a credit against a child support
arrearage is not a retroactive modification of support but is given in
recognition “that the obligor parent provided the support the court ordered
in the first place.” Netherton [v. Netherton, No. 01-A-01-9208-PB00323,
1993 WL 49556, at *2 (Tenn. Ct. App. Feb. 26, 1993)].
Martin v. Martin, No. W2014-01007-COA-R3-CV, 2015 WL 2400583, at *4 (Tenn. Ct.
App. May 20, 2015).
(1)
Regarding the debit cards given to his daughters, Father argues that the trial court
erred in failing to give him credit for necessary expenses he paid for his children and
payments he made as child support through the cards. He cites his own testimony and
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testimony of the children and Mother to argue that Mother knew about the cards and that
the cards were used to buy necessary items for the children.
Applying the legal principles set out above to the present case, we are in
agreement with the result reached by the trial court. The trial court made the following
relevant findings in its final order:
The Court received and carefully reviewed the report of the Special Master,
Clerk and Master Leigh Milam, as to the claims for credits for necessaries
for the two oldest daughters and finds as follows:
1. Not proven to be necessaries which Mother failed or refused to provide.
2. That Mother provided the necessities of life such as food, clothing,
housing, utilities, medical care and the like during the daughters’ minority.
Father contributed some child support as credited to him on the spreadsheet
attached to the Court’s original letter ruling and incorporated into the
Judgment.
3. The Father provided the two daughters with spending money on debit
cards and for extras which they used as they pleased and purchased what
they wished, either for themselves or for others. There is no evidence as to
who purchased what at any particular time. There is no evidence that any
of the monies on the debit cards were provided to the Mother to pay for
necessities.
4. There is no evidence which purchases by the children using the debit
cards were made by any particular daughter, or if it was for them, for
friends, or for others.
The evidence does not preponderate against these findings, and Father did not satisfy the
elements of the necessaries rule.4
(2)
As to the second part of his argument, Father asserts that the trial court erred in
failing to award him credit for the time the parties’ son lived with him in Texas instead of
with Mother. He makes this argument under the necessaries rule.
Father emphasizes that Mother provided no child support to him during the year
when their son lived with him and cites Hartley v. Thompson, No. 01A01-9502-CV-
00044, 1995 WL 296202 (Tenn. Ct. App. May 17, 1995), in support of his request for a
remand to allow proof on the amount he spent on his son. Mother did not provide child
support to Father during the year when the son was in Texas because, under the operative
4
Father does not dispute that, as to payments made prior to May 2008, the six-year statute of limitations
had run on a claim for credit for necessaries.
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court order, the son was supposed to be living with Mother in Tennessee. The trial court
made the following pertinent findings:
The child, Alex Contreras, resided with the Father from June, 2009 until
May, 2010. During that time, Father provided some necessities for the
child such as food, clothing, shelter, utilities, and the like. Mother also
provided shelter, utilities, medical insurance, and other items necessary to
maintain the household since she had to maintain the home for him to
return to. Mother further asserted that Father withheld the child from her
during this period and that she was unable to get the child back until the
school year was completed in May, 2010. Further, that for the summer
months during that period the child was with the Father, that was a normal
visitation period and the Father was not entitled to any credit during those
months. In any event, the Mother did not refuse to provide necessaries for
the child, but was deprived of the opportunity to do so. Father was in
violation of the parenting Order and parenting schedule and should not be
allowed to profit because of such willful violation.
As the trial court explained, Mother was under no obligation to provide support to Father
during the year when the son lived with Father. Father does not need another opportunity
to prove his claims; the trial in April 2015 and the hearings before the special master
were Father’s opportunities to document the payments he made on behalf of his children.
Furthermore, Father is not entitled to a claim for necessaries because Mother did not fail
to provide for her son; rather, Father deprived her of the opportunity to do so.
We find no abuse of discretion in the trial court’s denial of Father’s requests for
credits against his child support arrearage. We further deny Father’s requests for attorney
fees and expenses on appeal.
CONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellant, Steve Anthony Contreras, for which execution
may issue if necessary.
________________________________
ANDY D. BENNETT, JUDGE
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