In Re: Jalen O-H.

03/29/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 2, 2017
IN RE: JALEN O-H.
Direct Appeal from the Juvenile Court for Davidson County
No. 2015-2419, PT 206322 Jennifer N. Wade, Special Judge
No. M2016-01484-COA-R3-JV
Father appeals an order of the trial court setting current child support, awarding
retroactive child support, and changing the child’s last name to a hyphenated name
comprised of Father and Mother’s surnames. Discerning no error, we affirm the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
and Remanded
BRANDON O. GIBSON, J., delivered the opinion of the court, in which RICHARD H.
DINKINS and THOMAS R. FRIERSON, II, JJ., joined.
Edward Jordan Gross, Nashville, Tennessee, for the appellant, Father.
OPINION
I. FACTS & PROCEDURAL HISTORY
Mother gave birth to Jalen O-H. (the “Child”) on September 25, 2014. Father was
not present for the birth of the Child and did not sign the birth certificate. However, on
September 26, 2014, Father conducted a DNA test that ultimately confirmed Father was
the biological father of the Child. Mother and Father have never been married, nor have
they lived in the same household. Father visited the Child on a regular basis for the first
three or four months of the Child’s life but was not allowed to take the Child away from
Mother, who was breastfeeding the Child at the time. Beginning in January 2015, Father
exercised more visitation, including overnight visitations with the Child.
In May 2015, Mother was hospitalized, and Father took custody of the Child.
Shortly thereafter, Father filed the lawsuit at hand to establish parentage and for
emergency placement of the Child with him. Magistrate Michael O’Neil granted the
emergency placement with Father on May 20, 2015. On May 28, 2015, the magistrate
held a hearing with both Mother and Father present and ordered that the parties would
each exercise a fairly equal amount of parenting time. On October 21, 2015, the court
entered a custody order designating Mother as the primary residential parent, Father as
the alternate residential parent, and allowing Father 85 days of visitation per year. At that
time, Father was ordered to pay $639 in child support based on an income of $2,470.00
per month. Father was dissatisfied with this ruling and appealed the matter to the
juvenile court.
The juvenile court heard Father’s appeal on January 12, 2016, and issued a written
order of parentage and support on February 8, 2016. In this order, the juvenile court
concluded that Mother should remain the primary residential parent but that Father
should be granted additional parenting time. At that time, Mother was given 224 days of
parenting time, and Father was given 141 days of parenting time. Further, the February
8, 2016 order stated that the “issues of retroactive support which the Mother may raise,
and the change of the child’s name, which Father may raise, are reserved until the next
hearing.”
These two final issues were heard on May 12, 2016 before a special judge, who
was sitting as juvenile court judge by designation. On June 27, 2016, the court entered a
written order setting forth findings of fact and conclusions of law. In this order, the court
ordered Father to pay Mother retroactive child support and changed the Child’s name to a
hyphenated version of Father and Mother’s surnames. Father timely filed a notice of
appeal.1
II. ISSUES PRESENTED
Father presents the following issues for review on appeal, which we have restated:
1. Whether the trial court erred in assessing retroactive child
support to the date of the Child’s birth?
2. If retroactive child support is appropriate, whether the trial
court erred in the calculation of the amount of retroactive support due by
using incorrect income figures and assigning different support amounts for
different periods of time?
1
Mother did not file an appellate brief or otherwise participate in this appeal. The attorney who
represented Mother at trial informed this Court by letter that she was withdrawing as counsel for Mother
and would not be representing her on appeal.
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3. Whether the trial court erred in setting an amount of current
child support that was in conflict with an existing order of support set forth
in a final judgment?
4. Whether the trial court erred in changing the Child’s last
name to a hyphenated name that includes the surnames of both Mother and
Father rather than only the name of the Father?
III. STANDARD OF REVIEW
In nonjury cases, this Court’s review is de novo, with a presumption of correctness
as to the trial court’s factual determinations, unless the evidence preponderates against
those findings. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d
87, 91 (Tenn. 1993). The trial court’s conclusions of law, however, are afforded no such
presumption. Campbell v. Florida Steel, 919 S.W.2d 26, 35 (Tenn.1996). This Court has
set forth the following standard of review specifically for child support determinations:
[T]he adoption of the Child Support Guidelines has limited the courts’
discretion substantially, and decisions regarding child support must be
made within the strictures of the Child Support Guidelines.
....
Because child support decisions retain an element of discretion, we review
them using the deferential “abuse of discretion” standard. This standard is a
review-constraining standard of review that calls for less intense appellate
review and, therefore, less likelihood that the trial court’s decision will be
reversed. Appellate courts do not have the latitude to substitute their
discretion for that of the trial court. Thus, a trial court’s discretionary
decision will be upheld as long as it is not clearly unreasonable, and
reasonable minds can disagree about its correctness. Discretionary
decisions must, however, take the applicable law and the relevant facts into
account.
Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005) (internal citations
omitted).
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IV. DISCUSSION
1. Assessment of Retroactive Child Support
Father contends that the trial court erred in determining that Father owes
retroactive child support dating back to the Child’s birth because, after Father filed his
petition to establish parentage, he was given nearly equal parenting time with Mother.
The Child Support Guidelines (the “Guidelines”) specifically state that in cases
establishing paternity, a “judgment must be entered to include an amount of monthly
support due up to the date that an order for current support is entered from the date of the
child’s birth” unless the rebuttal provisions set forth in Tennessee Code Annotated
sections 36-2-311(a)(11) 2 or 36-5-101(e)3 have been established by clear and convincing
evidence. Tenn. Comp. R. & Reg. 1240-02-04-.06(1). Father makes no argument on
appeal that he has proven the rebuttal provisions of Tennessee Code Annotated sections
36-2-311(a)(11) or 36-5-101(e), and there is no evidence in the record to support their
applicability to this case. Father’s argument on this issue seems, in actuality, to be more
of an argument about the amount of retroactive child support that was assessed, which we
discuss in section 2 below. The Guidelines plainly contradict Father’s assertion that the
trial court erred in awarding retroactive child support back to the date of the Child’s birth,
and we therefore affirm the judgment of the trial court.
2
Tennessee Code Annotated section 36-2-311(a)(11) provides:
(A) Determination of child support pursuant to chapter 5 of this title. When making
retroactive support awards pursuant to the child support guidelines established pursuant
to this subsection (a), the court shall consider the following factors as a basis for
deviation from the presumption in the child support guidelines that child and medical
support for the benefit of the child shall be awarded retroactively to the date of the child’s
birth:
(i) The extent to which the father did not know, and could not have known, of the
existence of the child, the birth of the child, his possible parentage of the child or the
location of the child;
(ii) The extent to which the mother intentionally, and without good cause, failed
or refused to notify the father of the existence of the child, the birth of the child, the
father’s possible parentage of the child or the location of the child; and
(iii) The attempts, if any, by the child’s mother or caretaker to notify the father of
the mother’s pregnancy, or the existence of the child, the father’s possible parentage or
the location of the child[.]
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Tennessee Code Annotated section 36-5-101(e) describes additional circumstances under which an
obligor parent may be entitled to a deviation in retroactive child support owed, including those relevant in
cases of divorce or separation. Father does not argue that any of the circumstances in this statute apply to
this case, and the parties were never married.
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2. Calculation of Retroactive Child Support
Father next argues that the trial court erred in assessing retroactive support by
assigning different figures to “arbitrary” blocks of time. The Guidelines set forth the
following instructions for calculating the amount of retroactive child support due:
For the monthly BCSO [basic child support order], apply the Guidelines in
effect at the time of the order, using the Child Support Worksheet. Use the
average monthly income of both parents over the past two (2) years as the
amount to be entered for “monthly gross income,” unless the tribunal finds
that there is adequate evidence to support a different period of time for use
in the calculation and makes such a finding in its order. Do not include any
current additional expenses on the retroactive worksheet. Complete the
worksheet for the retroactive monthly amount, and multiply the amount
shown on the worksheet as the “Final Child Support Order” times the
number of months the tribunal has determined to be the appropriate period
for retroactive support.
Tenn. Comp. R. & Regs. 1240-02-04-.06(3)(a).
At the hearing on May 12, 2016, the trial court continued the hearing on Father’s
petition in the matter to determine the amount of retroactive child support owed by
Father, particularly in light of his “newly provided tax information” and whether the
Child’s last name should be changed. The court heard testimony from Father and Mother
regarding their incomes during the years 2014 and 2015 and Mother’s child care
expenses, and Mother and Father’s tax returns for years 2014 and 2015 were entered into
evidence.
On June 27, 2016, the court issued a written order and four separate income shares
worksheets assessing child support for four distinct periods of time. In light of the
multiple previous orders and agreements between the parties resulting in differing
custody arrangements for different periods of time, the court concluded that child support
should be assessed in the following amounts for the following time periods:
“1) Child Support from September 26, 2014 – December 31, 2014, at a rate of
$730 per month, for a total of $2336 owed for this period.”
In support of these figures, the court found that Father sought DNA testing of the Child
on September 26, 2014. At this point in time, Father was visiting the Child on a regular
basis, but he was not allowed to take the Child overnight because the Mother was
breastfeeding. Mother returned to work in November 2014, and her average cost of
work-related child care was $195. According to their 2014 tax returns, Mother’s income
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was $13,554.00, and Father’s income was $49,149.00. The trial court entered this
information into an income shares worksheet and calculated a total amount of $2,336.00
for the period between September 26, 2014 through December 31, 2014.
“2) Child Support from January 1, 2015 to October 21, 2015, excluding
approximately a month of 50/50 parenting time, at a rate of $661.00 per month, for a
total of $5160.06 owed for this period.”
In support of these figures, the court found that, in January 2015, Father began to exercise
more visitation with the Child, including overnight visits. In May 2015, Mother was
hospitalized, and Father initiated this lawsuit. On May 28, 2015, the magistrate ordered
that the parties exercise a relatively equal amount of parenting time with the child. The
court found that the parties adhered to this arrangement for about one month and then
reverted back to the previous arrangement (with Mother being primarily responsible for
the Child) until the court entered a new custody arrangement on October 21, 2015.
During this period, Mother’s child care expenses averaged $105 per month. According to
their 2015 income tax returns, Mother’s income for 2015 was $11,286, and Father’s
income was $44,537. The court entered this information into an income shares
worksheet and calculated Father’s child support obligation to be $5,160.06 for this
period, excluding the one month of fairly equal parenting time between May and June of
2015.
“3) Child Support for approximately one month of 50/50 parenting time from May
28, 2015 – June 28, 2015, at a rate of $467 per month, for a total of $467 owed for this
period.”
This period of time is the month of approximately equal parenting time explained in
period (2) above. The court’s calculations for this month on the income shares worksheet
showed that Father owed $467 for the month spanning May 28, 2015 through June 28,
2015.
“4) Child Support from October 21, 2015 to January 12, 2016, at a rate of [$]468
per month, for a total of $1268.13 owed for this period.”
In support of these figures, the court found that on October 21, 2015, a custody order
designated Mother as the primary residential parent and gave Father 85 days of visitation
per year. At this time, Father was ordered to pay $639 per month in child support based
on an imputed income of $2,470 per month. This order was modified on appeal by the
juvenile court on January 12, 2016. Father paid Mother a total of $420 from the time the
Child was born until January 2016. The trial court entered this information into an
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income shares worksheet and calculated Father’s child support obligation to be $1,268.13
for the period of October 21, 2015 through January 12, 2016.
The court then drew the following conclusions from the aforementioned income
shares calculations:
The total amount of child support owed was $9231.19 with a credit for
$420 paid to the mother during these periods. This amount shall be
subtracted from the total arrears. Father owes mother a total of $8,811.19
in arrears. Worksheets are attached to reflect the total arrears owed for
each period. Father shall pay arrears at a rate of $150.00 per month in
addition to his child support order in the amount of $468.00 per month, for
a total of $618 until arrears are paid in full.
We agree with Father that there may have been less convoluted ways for the trial
court to have calculated child support in this case. However, we do not agree that these
blocks of time are arbitrary, as Father suggests. The court adequately explained the
reasoning for its award and the different periods of time, and it carefully worked through
four separate income shares worksheets to support the figures it derived. Upon review of
the record, we conclude that the trial court’s assessment of retroactive child support was
within the range of reasonable alternatives available in this case, and that the court did
not abuse its discretion in awarding retroactive child support.
3. Current Child Support
We now turn to Father’s assertion that the court erred in setting the amount of his
current child support obligation. In his initial statement of “Issues Presented for Appeal,”
Father requests that this Court consider whether the court “erred in assigning an amount
of current child support in conflict with the existing order of current support when that
issue had not been reserved for determination and was, at that time, a final judgment.”
Other than this statement of the issue, Father’s brief does not articulate a clear argument
or present any case law or other authority to support his contention that the court erred in
setting Father’s current child support obligation.
Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure states that the brief
of an appellant shall contain the following:
(7) An argument . . . setting forth:
(A) the contentions of the appellant with respect to the issues to be
presented, and the reasons therefor, including the reasons why the
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contentions require appellate relief, with citations to the authorities and
appropriate references to the record [ ] relied on.
Tenn. R. App. P. 27(a)(7). “[A]n issue may be deemed waived, even when it has been
specifically raised as an issue, when the brief fails to include an argument satisfying the
requirements of Tenn. R. App. P. 27(a)(7).” Hodge v. Craig, 382 S.W.3d 325, 335
(Tenn. 2012).
It is not the role of the courts, trial or appellate, to research or construct a
litigant’s case or arguments for him or her, and where a party fails to
develop an argument in support of his or her contention or merely
constructs a skeletal argument, the issue is waived.
Sneed v. Bd. of Prof’l Responsibility, 301 S.W.3d 603, 615 (Tenn. 2010). “[P]arties must
thoroughly brief the issues they expect the appellate court to consider.” Waters v. Farr,
291 S.W.3d 873, 919 (Tenn. 2009).
Because of Father’s failure to develop more than a skeletal argument regarding the
issue of his current child support obligation, we deem this issue waived.
4. Name Change
Finally, Father asserts that the trial court erred in changing the Child’s surname to
a hyphenated name comprised of both Father and Mother’s surnames rather than Father’s
name only. The record is not clear as to when or how Father first petitioned the trial
court to change the Child’s name to his last name. However, the order of parentage and
support entered by the juvenile court on February 8, 2016 stated that “[t]he issues of
retroactive child support . . . and the change of the child’s name . . . are reserved until the
next hearing.” That “next hearing” was the hearing held before a special judge on May
12, 2016.
According to Father, “the Special Judge found the minor child’s last name should
be hyphenated to include both Father’s and Mother’s surname, which was not proposed
by either party.” (Emphasis added.) To the contrary, the transcript of the hearing on
May 12, 2016 reveals that the Child currently had Mother’s last name and that Mother
did not want the Child’s name changed at all. Father was the party petitioning the court
for the Child’s name to be changed to reflect his surname, and Father’s counsel was the
one who suggested the hyphenated name: “If your Honor please, I have submitted the
possibility of a hyphenated name.” Further, the trial court made a specific finding in the
order from that hearing that Father was seeking to change the Child’s surname to either
his surname or a hyphenated surname containing both his and Mother’s surnames.
Again, the record is unclear as to the means by which Father petitioned the court to
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change the Child’s name in the first place, but it appears that Father was in fact the one
who proposed the idea of a hyphenated name. We therefore reject Father’s argument that
the trial court “crafted a new proposed name that neither party sought.”
Father next takes issue with the tradition that “out-of-wedlock children carry the
last name of the Mother.” Father invites this Court to “re-evaluate the criteria in this
regard as to the appropriateness of arbitrarily assigning the maternal surname to a child
born to unmarried parents.” This argument demonstrates a misunderstanding of the law
that governs the last name assigned to children. While this Court has articulated a
standard for changing a non-marital child’s surname, the Tennessee General Assembly
has determined the default surname a child should be given in a particular situation.
Relevant to this case, Tennessee Code Annotated section 68-3-305 states as follows:
(b)(1) If the mother was not married at the time of either conception or
birth or between conception and birth . . . the surname of the child shall be
that of either:
(A) The surname of the mother;
(B) The mother’s maiden surname; or
(C) Any combination of the surnames listed in subdivisions
(b)(1)(A) and (B).
Tenn. Code Ann. § 36-3-305. Father’s arguments to this Court regarding the expediency
of giving non-marital children their mother’s last name are misplaced because this Court
“cannot amend or modify any legislative acts . . . . Considerations of that sort must, in
general, be addressed to the legislature.” Stein v. Davidson Hotel Co., 945 S.W.2d 714,
717 (Tenn. 1997).
Father also asserts that the trial court incorrectly applied the law when it declined
to change the Child’s name to Father’s surname alone. The standard for changing a non-
marital child’s surname was set forth in Barabas v. Rogers:
The courts should not change a child’s surname unless the change promotes
the child’s best interests. Among the criteria for determining whether
changing a child’s surname will be in the child’s best interests are: (1) the
child’s preference, (2) the changes potential effect on the child’s
relationship with each parent (3) the length of time the child has had its
present surname, (4) the degree of community respect associated with the
present and proposed surname, and (5) the difficulty, harassment, or
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embarrassment that the child may experience from bearing either its present
or its proposed surname.
Barabas v. Rogers, 868 S.W.2d 283, 287 (Tenn. Ct. App. 1993) (internal citations
omitted). The parent seeking to change a child’s surname, which is Father in this case,
has the burden of proving that the change will further the child’s best interests. See id. In
its order, the trial court correctly articulated this standard and carefully walked through
each of these factors, finding as follows:
1) The child’s preference – In this case, the child is not of age to have
formed a preference;
2) The change’s potential effect on the child’s relationship with each
parent – In this case, the Court believes that the father has exercised due
care in determining whether this child was his or not. I, therefore, believe
that a change in the child’s surname will strengthen the relationship and
bond that the child has with the father, but the change will not take away
from the bond that the child has with the mother. The father has made the
steps necessary to establish a relationship with the child, which would be
weakened if the child does not [bear] the father’s last name[;]
3) The length of time that the child has had her surname – In this case, the
child is young; not yet school aged. The child has not learned the given
name and does not have many records established in that name. The time
the child has carried this name has been relatively short and therefore
causes no hardship to the child if changed;
4) The degree of community respect associated with the present or
proposed surname – In this case, there is no respect or disrespect associated
with either of the parents’ surnames. The proposed hyphenated surname . .
. therefore does [not] have any disrespect associated with [it]. This Court
finds that there is no connotation of ill repute for a child with a hyphenated
surname; and
5) The difficulty, harassment, or embarrassment that the child will
experience from bearing either its present or proposed surname – In this
case the Court does not believe that there will be any embarrassment or
difficulty in bearing her current name or the proposed name.
As such, I believe that the bond between [ ] father and his daughter
to be one that is essential in the upbringing of the child in today’s society. I
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believe that in this case the father has initiated steps to determining whether
this was his child and is pursuing the bond that his child will need long
term. We live in a society when mixed families and nontraditional families
are more common place. As such, this Court holds that the child’s name
shall be changed to [the hyphenated surname].
Father contends that, based on the trial court’s findings, the judge should have
determined that the Child’s name would be changed to his surname alone rather than the
hyphenated name. We again note that Father and/or his counsel were the ones who
proposed the option of the hyphenated name, and Mother has not appealed the issue. We
conclude that the facts in the record do not preponderate against the trial court’s finding
that the best interests of the Child are served by changing the Child’s last name to a
hyphenated name comprised of the surnames of Father and Mother. Accordingly, we
affirm the order of the trial court.
IV. CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court. Costs of this
appeal are taxed to the appellant, Father, and his surety, for which execution may issue if
necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
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