Betty BERRYHILL v. Charles Thomas RHODES.
Supreme Court of Tennessee, at Jackson.
May 30, 2000.
21 S.W.3d 188
Robert L. Green, Memphis, TN, for appellee, Charles Thomas Rhodes.
OPINION
HOLDER, J., delivered the opinion of the court, in which ANDERSON, C.J., and DROWOTA, J., joined.
We granted this appeal to determine: (1) whether parties may enter into a private agreement regarding the payment of child support outside the Child Support Guidelines; (2) whether the evidence preponderates against an award of retroactive child support in excess of the amount agreed upon by the parties; and (3) whether the plaintiff rebutted the presumption that a two-year average of income should be used to determine the amount of child support due under the guidelines. After careful consideration, we hold that a private agreement as to child support payments violates public policy, that the trial court failed to properly apply
Betty Berryhill was a patient of Memphis psychiatrist Dr. Charles T. Rhodes in 1975 or 1976. The parties began a sexual relationship that resulted in the birth of a child, Anika L. Berryhill, on September 5, 1977. Dr. Rhodes paid the delivery-related charges not covered by insurance. Dr. Rhodes then began paying Ms. Berryhill $200 per month. Dr. Rhodes increased the payment to $300 per month when the child was approximately six months of age. He continued to make monthly payments until Anika‘s eighteenth birthday in September 1995. During Anika‘s minority, Ms. Berryhill requested additional increases in support. Dr. Rhodes, however, refused these requests. In October 1995, Ms. Berryhill filed a petition to establish paternity. In addition, she requested child support from the date of the child‘s birth through the period of her minority.
At the time of trial, Ms. Berryhill was forty-six years old and had been primarily employed with the State of Tennessee Division of Rehabilitation Services since 1970. From 1985 through the time of trial, she was also employed part-time at Federal Express. Ms. Berryhill testified that she maintained health insurance coverage for Anika through both jobs to ensure that her child had adequate insurance coverage. She also incurred medical and dental expenses not covered by insurance. These amounts were not specified. Dr. Rhodes provided no insurance. He testified that he was never asked to make any contributions to the child‘s medical care.
Dr. Rhodes did not visit the child. After the child‘s birth, Ms. Berryhill sent a photograph of the child to Dr. Rhodes and he “became explosive.” Dr. Rhodes acknowledged that he asked Ms. Berryhill not to send any more photographs of the child. Dr. Rhodes saw his daughter in person for the first time when blood tests were conducted in December 1995.
Dr. Rhodes graduated from medical school in 1963. The record reflects that Dr. Rhodes’ income varied greatly in the years for which financial records were available. In 1988, 1989, and 1990, his income was substantially higher. In those years he reported earning $125,000 annually under a hospital contract in addition to earnings from his private practice. The hospital contract was not renewed. Since 1990, and through the time of trial, Dr. Rhodes maintained a private practice and experienced declining income. In 1990, Dr. Rhodes divorced his wife of twenty-four years. As a result of the divorce, he paid child support for two children during a portion of Anika‘s minority. At the time of trial, he testified he was working part-time and contemplating retirement.
The juvenile court referee found that Dr. Rhodes was the natural father of Anika L. Berryhill.1 The referee also found that the parties voluntarily entered into an agreement for Dr. Rhodes to pay the expenses incidental to the child‘s birth and to pay a monthly amount of $2502 and then $300. The payments were made until the child‘s majority. The referee held that the amount of support agreed to by the parties was “just and reasonable” and it would be “unfair and unreasonable to unjustly enrich the petitioner” by ordering additional support after Anika attained majority.
The Court of Appeals held that the juvenile court failed to comply with the Child Support Guidelines and remanded the case to the juvenile court. Upon remand, the trial court was directed to state the amount that would have been required under the guidelines and to include a justification for deviating from the guidelines.3 In making that determination, the trial court must specifically state that the application of the guidelines would be “unjust or inappropriate” instead of “unfair and unreasonable.” Although stating that the discussion was not necessary for its decision, the Court of Appeals held that the evidence did not preponderate against the trial court‘s finding that there was an implied agreement between the parties.
ANALYSIS
Ms. Berryhill contends that the lower courts erred in finding either an express or an implied agreement between her and Dr. Rhodes as to the amount of support to be paid. She argues that it was error for the juvenile court to deviate from the Child Support Guidelines and to refuse to award additional support. She also argues that the additional support should be awarded based upon a ten-year average of Dr. Rhodes’ income rather than a presumptive two-year average provided under the guidelines. Dr. Rhodes argues that retroactive awards are discretionary with the juvenile court. He also argues that Ms. Berryhill should be estopped from seeking additional support because she accepted his payments under an express or an implied agreement. We review the record of the trial court de novo with the presumption that the decision of the trial court with respect to the facts is correct unless the evidence preponderates against such factual determinations. Farrar v. Farrar, 553 S.W.2d 741, 743 (Tenn. 1977).
Private Agreement for Child Support
Ms. Berryhill contends that both the Court of Appeals and the juvenile court erred in finding that the parent of a child to whom child support is owed may enter into a private agreement4 to accept child support less than that required to be paid under the Child Support Guidelines and
Our paternity and child support statutes and the Child Support Guidelines evince a policy that children should be supported by their fathers. The paternity statutes provide a process by which the putative father can be identified. Once identified, the father is required to furnish support and education for the child.5
Although this Court has not specifically addressed the issue of the validity of a private agreement for payment of child support, other states that have considered the issue have found such agreements violate public policy. In Paul M. v. Teresa M., 36 Ark. App. 116, 818 S.W.2d 594 (1991), the Arkansas appellate court rejected a father‘s argument in a paternity action that he was relieved of his support obligation because the child‘s mother had agreed to take full responsibility for the child. “Insofar as the agreement at issue here represents an attempt to permanently deprive the child of support, it is void as against public policy.” Id. at 596. The court stated that a duty of support cannot be bargained away permanently to the detriment of the child. Similarly, the court has held that an agreement not to seek increases in child support is void as against public policy. Id. at 595. “These holdings are based on principles that the interests of minors have always been the subject of jealous and watchful care by the courts....” Id. Likewise, in Worthington v. Worthington, 250 Ga. 730, 301 S.E.2d 44 (1983), the Georgia Supreme Court held that a lump sum payment of $10,000 to the child‘s mother did not release the father from his child support obligations. “Children, legitimate or illegitimate, are not property, and absent a clear legislative declaration otherwise their support rights may not be bartered away by their parents.” Id. at 46.
Courts in several jurisdictions have found that a child‘s right to support cannot be bargained away by a parent to the child‘s detriment. Davis v. Office of Child Support Enforcement, 322 Ark. 352, 908 S.W.2d 649, 651 (1995); see also Gammon v. Cobb, 335 So. 2d 261, 266-67 (Fla. 1976) (noting that the mother is the trustee who receives funds and simply converts them into relief for the children); Livsey v. Livsey, 229 Ga. 368, 191 S.E.2d 859, 860 (1972); Tuer v. Niedoliwka, 92 Mich. App. 694, 285 N.W.2d 424, 426 (1979) (adopting holding that “an illegitimate child‘s right to support from a putative father cannot be contracted away by its mother, and that any release or compromise executed by the mother is invalid to the extent that it purports to affect the rights of the child“); State v. Dongher, 47 Minn. 436, 50 N.W. 475, 475 (1891) (rejecting father‘s argument that he was released from child support obligations by the payment of $100 to the mother); Fox v. Hohenshelt, 19 Or. App. 617, 528 P.2d 1376, 1381 (1974) (holding that two parties should not be able to prejudice the rights of a third and that a contract between mother and putative father of illegitimate child cannot preclude future filiation proceedings for purposes of child support without judicial scrutiny and approval); Diehl v. Mulhern, 406 Pa. Super. 422, 594 A.2d 692, 695 (1991); Shelby J.S. v. George L.H., 181 W. Va. 154, 381 S.E.2d 269, 271 (1989) (noting court‘s caution in permitting a mother to settle child support claims with natural father).
We find the holdings and reasoning of these courts to be persuasive. Tennessee‘s statutory provisions for the establishment of paternity and support and the Child Support Guidelines evince a policy that fathers will support their children. Private agreements used to circumvent the obligations set forth in the statutes and guidelines contravene that policy.
Additional Amount of Support
Although we have determined that any private agreement, whether express or implied, would violate public policy, we recognize that Dr. Rhodes made monthly payments of $200 and $300 during Anika‘s minority. We must, therefore, address whether the evidence preponderates against the trial court‘s conclusion that the amounts paid were “just and reasonable” and that it would be “unfair and unreasonable to unjustly enrich” Ms. Berryhill by ordering additional amounts of support subsequent to Anika‘s majority. For the reasons below, we conclude that a remand to the juvenile court is necessary.
The legislature has provided for retroactive awards by statute and by the incorporation of the Child Support Guidelines promulgated by the Tennessee Department of Human Services, Child Support Services Division. Retroactive child support is available whether the child is a minor or whether the child has reached the age of majority and brings the claim within time permitted by the statute.
The Court of Appeals in this case recognized the guidelines apply as a rebuttable presumption regarding the amount of child support to be paid. The court, however, stated that the presumption is not to be construed as an abrogation of this Court‘s statement in Coleman v. Clay, 805 S.W.2d 752, 755 (Tenn. 1991), that a court “has broad discretion to determine the amount of such a retroactive award.” This Court acknowledged in Coleman that a father is responsible for the support of his child and that this obligation arises at the date of the child‘s birth. Id. at 754-55. This Court further stated that a juvenile court judge has broad discretion to determine
The Child Support Guidelines, however, were silent as to retroactive awards when this Court decided Coleman. Subsequent to the decision in Coleman, retroactivity provisions were added to the Child Support Guidelines. The specific inclusion of these provisions in 1994 limited the courts’ discretion in setting amounts of child support. While the juvenile court continues to have discretion in making awards of child support, that discretion must be exercised within the strictures of the Child Support Guidelines.
The Court of Appeals remanded the case to the trial court to require the trial court to state the amount of child support that would have been required under the guidelines as well as a justification for deviation from the guidelines. We agree that a remand is required in this case for the trial court to make appropriate findings of fact. The guidelines provide a general formula for calculating the appropriate amount of child support based on an obligor‘s income and include a procedure which permits limited deviation downward from the general formula.
“[T]he guidelines expressly provide for downward deviation where the obligee has utterly ceased to care for the child(ren); where the obligee clearly has a lower level of child care expense than that assumed in the guidelines; and where the obligor is saddled with ‘extreme economic hardship.‘” Jones v. Jones, 930 S.W.2d 541, 545 (Tenn. 1996);
After determining the amount of child support under the guidelines, the trial court may then consider whether the evidence is sufficient to rebut the presumption. To deviate from the presumptive amount, a court must enter:
a written or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case ... in order to provide for the best interest of the child or the equity between the parties and the court must show what the child support award would have been without the deviation.
Tenn. Comp. R. & Regs. ch. 1240-2-4-.01(2) (3),ch. 1240-2-4-.02(7) (1994); see alsoTenn. Code Ann. § 36-5-101(e)(1) .
Time period for computation of retroactive child support
On remand the trial court will determine the amount of child support that would be due under the guidelines as well as the appropriateness of any deviation. In making the initial determination of child support, the trial court must determine the gross income of Dr. Rhodes during the time periods in question. In setting retroactive awards, the guidelines provide that the obligor‘s income for the last two years is presumed to be correct unless rebutted by either party.
Dr. Rhodes produced tax returns for ten years, 1983 and 1987-1995. Using those returns, an accountant testified that Dr. Rhodes’ gross income was as follows:
| 1995 | $ 51,250 | 1990 | $333,856 |
| 1994 | $ 47,490 | 1989 | $294,007 |
| 1993 | $ 80,286 | 1988 | $235,553 |
| 1992 | $123,057 | 1987 | $ 98,248 |
| 1991 | $173,427 | 1983 | $ 30,388 |
Doctor Rhodes testified that his income reported in 1988, 1989, and 1990 was unusually high because he entered into a contract with a hospital and earned $125,000 per year in addition to his private practice. Dr. Rhodes testified that at the time of trial in 1996 his practice had become close to part-time and that he was contemplating retirement.
Dr. Rhodes graduated from medical school in 1963. Using the last two years of his income would unfairly emphasize a time when it appears Dr. Rhodes was winding down his medical practice. Furthermore, the obligation or duty of support spanned eighteen years-the entire life of the child. We conclude that Ms. Berryhill successfully rebutted the presumption that a two-year average should apply. She demonstrated that a representation of income over a longer period would be more appropriate. Based upon this record, however, it is unclear that the ten-year average proposed by Ms. Berryhill would be appropriate.
Ms. Berryhill presented testimony from an accountant who made certain calculations based upon Dr. Rhodes’ income over ten years. The accountant acknowledged that the information he used was not complete and may not have fully taken into account Dr. Rhodes’ other child support obligations when determining his average income. Although Dr. Rhodes’ counsel had requested additional income tax returns from the Internal Revenue Service, those records were not available at the time of trial. Counsel for Dr. Rhodes elected to go forward with the available records.
CONCLUSION
We conclude that private agreements for the payment of child support violate public policy. We remand the case for an application of the Child Support Guidelines to determine the amount of child support that would be owed under the guidelines and, if appropriate, for findings of fact justifying a conclusion that the application of the guidelines would be unjust or inappropriate.
Upon remand, Ms. Berryhill should be permitted to offer additional evidence as to her medical and dental expense claims. We hold that Ms. Berryhill successfully rebutted the presumption that a two-year average of Dr. Rhodes’ income should be used in determining the amount of child support due under the guidelines. Dr. Rhodes, however, should be permitted to offer additional evidence regarding his income for the years in question. The juvenile court will then determine the appropriate time period for averaging Dr. Rhodes’ income. Dr. Rhodes shall receive credit for the monthly payments he previously made. The case is remanded to the juvenile court for further proceedings consistent with this opinion. Costs of this appeal are to be taxed against Dr. Rhodes.
BIRCH, J., filed a dissenting and concurring opinion, in which BARKER, J., joined.
I fully concur in the majority‘s decision to remand this case to determine whether deviation from the guidelines is appropriate. I cannot, however, accept the majority‘s analysis of private agreements for child support. To the extent that the majority opinion suggests that such agreements are per se void, and thus never enforceable, I must respectfully dissent.1
It is my opinion that parents of non-marital children should be permitted, indeed encouraged, to agree upon child support. The parties must, however, fully realize that any such private agreement is always subject to modification by the appropriate judicial authority. Viewed in this manner, one can reasonably predict that private agreements which meet applicable criteria will most likely be approved when subjected to court scrutiny. Conversely, if the agreement fails in this regard, then it is unlikely to receive court approval.
Private agreements for child support have been statutorily encouraged. As the majority notes,
[n]othing in this section shall be construed to prevent affirmation, ratification and incorporation in a decree of an agreement between the parties as to child support and maintenance of a party or as to child support.
Applying these rules of statutory construction to
Despite our statute‘s plain language, the majority contends that private agreements for child support contravene public policy.2 “[T]he determination of public policy is primarily a function of the legislature,” and the judiciary determines “public policy in the absence of any constitutional or statutory declaration.” Alcazar v. Hayes, 982 S.W.2d 845, 851 (Tenn. 1998). In promulgating
Additionally, under
Indeed, as stated earlier, parents of nonmarital children should be encouraged to enter into private agreements to support their children. I am perturbed by the result created by the majority opinion. Here, a father who never sought to evade parental responsibility as to paternity or support agreed with the child‘s mother to pay a sum certain every month for the support of the child. This father faithfully and dutifully made these payments up to the child‘s eighteenth birthday. What more can society rightfully require of him?
Notes
Nothing in this section shall be construed to prevent the affirmation, ratification and incorporation in a decree of an agreement between the parties as to support and maintenance of a party or as to child support. In any such agreement, the parties must affirmatively acknowledge that no action by the parties will be effective to reduce child support after the due date of each payment, and that they understand that court approval must be obtained before child support can be reduced, unless such payments are automatically reduced or terminated under the terms of the agreement.
Stipulations presented to the court shall be reviewed by the court before approval. No hearing shall be required. However, the court shall use the guidelines in reviewing the adequacy of child support orders negotiated by the parties. The court shall require that stipulations in which the guidelines are not met must provide a justification for the deviation which takes into consideration the best interest of the child and must state the amount which would have been required under the guidelines.
Tenn. Comp. R. & Regs. Ch. 1240-2-4-.02(4) .