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IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
DEBRA A. BULLINGTON v. RAYMOND KEITH HUDSON
Direct Appeal from the Juvenile Court for Davidson County No. 97-11670 Betty Adams Green, Judge

No. M1999-02772-COA-R3-CV - Decided April 26, 2000

This appeal involves a father's child support obligation. After the child's mother filed a petition to increase child support, the trial court increased the amount of child support prospectively as well as retrospectively for a period of seven years prior to the mother's petition to increase support. The court's retrospective modification was effected by a correction of the prior support order pursuant to Tennessee Rule of Civil Procedure 60.01. We hold that the court erred in its retroactive modification of child support as well as in its decision not to award the wife attorney fees below.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed and Remanded

CAIN , J., delivered the opinion of the court, in which CANTRELL , P.J., M.S., and COTTRELL , J., joined.

Robert L. Jackson, Stanley A. Kweller, Nashville, Tennessee, for the appellants, Raymond Keith Hudson. John J. Hollins, Jr., Nashville, Tennessee, for the appellee, Debra A. Bullington.

OPINION I. FACTS Raymond Hudson ("the Father") and Debra Bullington ("the Mother") are the parents of Christopher Ryan Bullington. The parties are not now and have never been married. For his entire life, Christopher has lived with the Mother. On appeal, we review the court's most recent order involving the Father's obligation to support Christopher.

Christopher was born on February 11, 1982. In November of 1985, the Father filed a petition to legitimate Christopher after which the Mother filed an answer and counter claim to establish the Father's child support obligations. On November 25, 1987, the juvenile court entered a memorandum opinion ("the November 1987 Memo Opinion"), the provisions of which were put into effect by a February 1988 Order entered nunc pro tunc for November 25, 1987. In the November 1987 Memo Opinion, the parties stipulated that Raymond Hudson was Christopher's natural father. In addition, the court set the amount of child support arrearage at $6500, and it ordered the Father to pay $25 per week on this arrearage. The court set child support at $35 per week. Finally, the opinion provided that the Father furnish the Mother with a copy of his federal tax return each year beginning with the 1987 tax year. In 1990, the Mother petitioned for an increase in support due to a material change of circumstances with regard to the Father's income. The Father's support obligation was increased by an agreed order entered in May of 1990 ("the May 1990 Agreed Order"). The court modified child support to $60 per week. Several years later, in October of 1997, the Mother again petitioned for an increase in child support. She alleged that the Father's income had substantially increased since May 7, 1990. The court entered an agreed order on February 22, 1999 ("the February 1999 Agreed Order") which set child support at $787 per month and which provided that all remaining issues be reserved until the final hearing. This agreed order was entered nunc pro tunc for March 15, 1998. At the final hearing, the Father and the Mother were the only witnesses. The Mother stated that she filed her most recent petition to increase child support when she learned that the Father had gone to work at Nissan in 1990. The Mother testified that she could not afford a lawyer so she alone met the Father in a parking lot where he showed her some papers regarding his earnings. At this time, she signed the May 1990 Agreed Order. The Mother testified "[s]o I took him at his word and I signed the papers because he told me that's what it was and that's all he was going to pay." She added that since the Father did have a lawyer, she was assuming that they were being honest with her. The Mother testified that she received from the Father yearly from 1990 to 1996 copies of his federal income tax returns filed jointly with his wife, Belinda Hudson. The Mother testified that she never received from him any W-2 forms and thus that she never knew the amount of his personal yearly income. Entered as a trial exhibit were all of these tax forms as well as the W-2 forms. The Father's W-2 forms showed his gross income as follows: in 1991, $50,500; in 1992, $45,000; in 1993, $45,000; in 1994, $61,022; in 1995, $60,500; and in 1996, $55,000. The 1990 tax joint return filed by the Father and his wife showed total wages and salaries at $49,483; however, the attached W-2 form showed that the Father earned from Nissan $32,031.33 for the entire year of 1990.

The Mother testified that she earned approximately $40,000 per year and that it had been

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difficult to support Christopher and herself over the years. On occasion, the Mother would super glue Christopher's shoes together until she could afford new ones. She rarely had cash to give him for activities. She testified that Christopher, now a seventeen-year-old sophomore, works at a grocery store. Regarding her legal expenses, the Mother testified that she had taken out a loan to pay her attorney a $2500 retainer fee to bring this support modification proceeding. The Father testified that he was married and had been so for thirteen years to his wife with whom he had three children. He said that he had started work at Nissan in 1990 and that he had agreed to the 1990 increase in support to $85 per week. He admitted that he had not visited Christopher since he was two years old and that he had taken no action to have a relationship with Christopher. He testified that he had not sent the Wife W-2 forms because the Agreed Order had only provided that he send to her tax return forms. However, the Father admitted on cross-examination that he had sent the Mother partial tax return forms for the past years because he did not want her to know the amount of his individual income. The final order was entered on March 16, 1999. With regard to current child support, the court left it at the agreed amount of $787 per month as per the February 1999 Agreed Order stating that this amount is within the child support guidelines. In addition, the court ordered that child support from November 1997 until this order went into effect on April 1, 1998 also be set at $787. The court found that an upward deviation was appropriate under the facts of this case due to the Father's failure to visit the child. Since such deviation was not requested until October 1997, the court ordered that it should be prospective from November 1, 1997 forward at $187 per month. With regard to the issues now on appeal, the trial court ordered that the May 1990 Agreed Order be corrected pursuant to Tennessee Rule of Civil Procedure 60.01. The May 1990 Agreed Order had stated that the parties acknowledged that the order complied with the child support guidelines. However, the court found that the agreed upon amount of child support, $60 per week, was approximately 45% less than the amount required by the guidelines. The court reasoned that the $60 per week amount was a clerical mistake since there was no specific finding rebutting the presumption that the guideline amount was appropriate. Thus, the court corrected the May 1990 Order to reflect the guideline amount which the court set, based upon the Father's income for 1990, at $108 per week. Since 383 weeks had passed from the time that the order was entered until the filing of the Mother's petition to modify, the difference in $108 and $60 is $48 per week which amounts to an additional $18,384 due through October 3, 1997. Finally, the court ordered that each party be responsible for his and her own attorney fees. II. ISSUES Though the final order effected a modification of other aspects of the parties' support agreement, the only issue on appeal regarding child support is the trial court's modification of support prior to the October 1997 Petition. The Father argues that such a retroactive increase in child support violates a state statute. In addition, he contends that Rule 60.01 is not properly used in this case to correct a clerical error of the court. We agree with the Father on both these grounds.

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However, we agree with the Mother in her assertion that the trial court should have awarded her attorney fees below. A. First, with regard to the court's order being a statutory violation, the Tennessee code provides as follows: [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 and notice of the action has been mailed to the last known address of the opposing parties. Tenn. Code Ann.

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