Child Support Svcs. v. Russell

STATE OF TENNESSEE, CHILD )
SUPPORT SERVICES OF )
DAVIDSON COUNTY, EX REL. )
CETTA COBBLE JACKSON, )
)
Petitioner/Appellee, ) Appeal No.
) 01-A-01-9706-JV-00267
VS. )
) Davidson Juvenile
HUBERT RUSSELL, ) No. 185-447-84
)
Respondent/Appellant.

IN THE MATTER OF:
)
)
)
FILED
TIMOTHY BRYANT DEWAN COBBLE )
A Child Under the Age of Eighteen ) February 13, 1998

Cecil W. Crowson
COURT OF APPEALS OF TENNESSEE Appellate Court Clerk
MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE JUVENILE COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE

THE HONORABLE ANDREW J. SHOOKHOFF, JUDGE

JOHN KNOX WALKUP
Attorney General & Reporter

KIMBERLY M. FRAYN
Assistant Attorney General
2nd Floor Cordell Hull Building
425 Fifth Avenue, North
Nashville, Tennessee 37243-0499
Attorney for Petitioner/Appellee

EVALINA C. CHEADLE
129 Second Avenue North
Nashville, Tennessee 37201
Attorney for Respondent/Appellant

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR:
TODD, P.J., M.S.
KOCH, J.

OPINION
 The primary question presented by this appeal is whether a Juvenile

Referee’s decision giving a father credit for social security payments made to his child

could be reversed by the Juvenile Judge after it allegedly had become final. The

State argues that a change in the law makes the issue moot. We reject the mootness

argument and affirm the lower court’s order reversing the Referee’s decision.

I.

This case is before the court on the technical record only, no transcript

of the evidence having been filed. Therefore, the factual basis for the various rulings

is not an issue. The technical record shows that a child was born on May 29, 1981

to Hubert Russell and Cetta Cobble. The parents were not married but they filed a

joint petition to legitimate the child, and the Juvenile Court of Davidson County

granted the petition.

Various issues concerning support were tried at various times, some of

them initiated by the State of Tennessee which was then providing aid to the child.

On June 1, 1995 the Juvenile Court Referee entered an order requiring Mr. Russell

to pay $130.00 per month for child support and to pay $43.33 per month on a

$3,567.00 arrearage. Mr. Russell immediately filed a series of motions seeking to

have his child support reduced because he was disabled and the child would begin

receiving support through Social Security. On October 13, 1995 the Referee ruled

that “as long as Mr. Russell receives disability and Ms. Jackson receives a check for

Timothy’s benefit, the child support obligation is met and no other payments shall be

required.” Neither side appealed the order.

In subsequent proceedings the Referee entered other orders that

reduced Mr. Russell’s arrearage by $1,499.00, the amount Ms. Jackson was

supposed to receive in a lump sum from Social Security. The matter finally came

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before the Juvenile Judge because both sides appealed; Ms. Jackson because she

did not receive the $1,499.00 and Mr. Russell because he thought his arrearage had

been miscalculated.

The Juvenile Judge found that Mr. Russell’s social security benefits were

income for child support purposes and that based on that income the child support

obligation was $200.00 per month. But because of Mr. Russell’s extraordinary

medical expenses the court deviated from the guidelines and ordered Mr. Russell to

pay $84.00 per month. In addition, the court held that the social security payments

to the child could not be considered to satisfy either Mr. Russell’s current support

obligation or the arrearage. Finally, the court found that the arrearage was $4,196.00

and ordered Mr. Russell to pay $36.00 per month on the arrearage in addition to his

$84.00 per month current support obligation.

II.

First, Mr. Russell argues that the Juvenile Judge did not have before him

a question of current support since the only appeals were from the Referee’s orders

dealing with the arrearage. We find, however, that the judge was obviously presented

with other questions on which it was necessary to hear proof, and without a transcript

of the evidence, we do not know what issues may have come before the court or were

tried by consent.

Next, Mr. Russell argues that the Referee’s order relieving him of any

further child support payments as long as the child was receiving payments from

social security had become final and could not be reversed by the Juvenile Judge.

See Tenn. Code Ann. § 37-1-107, Rule 4(d), Tenn. R. Juv. Proc., and Rule 8.02,

Rules of Dav. Co. Juv. Ct. Mr. Russell makes this argument in the face of the

provisions of Tenn. Code Ann. § 36-5-101(a)(4)(E)(ii):

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 No credit for child support payments shall be given by the
Court for payment by the social security administration to
the obligor’s child pursuant to a claim based on the work-
related disability of the obligor.

It could be argued that the Referee’s order was void because the statute

removed the court’s subject matter jurisdiction to order the credit. But beyond that,

we think the Juvenile Judge had the power, on his own motion, to rehear the matters

decided by the Referee. Tenn. Code Ann. § 37-1-107 provides:

(e) Any party may, within five (5) days
thereafter, excluding nonjudicial days, file a request with
the court for a hearing by the judge of the juvenile court.
The judge may, on the judge’s own motion, order a
rehearing of any matter heard before a referee, and shall
allow a hearing if a request for such hearing is filed as
herein prescribed. Unless the judge orders otherwise, the
recommendation of the referee shall be the decree of the
court pending a rehearing.

(f) In case no hearing before the judge is
requested, or when the right to a hearing is waived, the
findings and recommendations of the referee become the
decree of the court when confirmed by an order of the
judge. The final order of the court is, in any event, proof
of such confirmation, and also of the fact that the matter
was duly referred to the referee.

There are no time limits in the statute within which the judge must act

to review the Referee’s order. But of most significance is the provision that requires

the confirmation by the judge in order for the Referee’s findings and recommendations

to become final. See Chapman v. Malone, 874 S.W.2d 66 (Tenn. App. 1993). There

is nothing in this record showing that the Juvenile Judge confirmed the Referee’s

order of October 13, 1995; therefore, the order did not reach that stage of finality that

would prevent the Juvenile Judge from reviewing it.

We are aware of Rule 8.02 of the Davidson County Juvenile Court which

provides:

The following language should be inserted in all
referee orders as the concluding portion of the order and
is to be used in lieu of the judge’s confirming order:

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 Pursuant to T.C.A. § 37-1-107, this order becomes the
final order of the Juvenile Court if an appeal is not filed
within five days, excluding Saturdays, Sundays and legal
holidays, from the date this order is entered. This order
may be appealed to the Juvenile Court Judge by filing a
request for rehearing with the Juvenile Court Clerk. This
order must be obeyed until the Judge rules otherwise.
ANY FAILURE TO COMPLY WITH THIS REFEREE’S
ORDER IS PUNISHABLE BY CONTEMPT, FOR WHICH
THE PENALTIES MAY INCLUDE A FINE AND/OR
IMPRISONMENT.

However, any part of the rule that conflicts with Tenn. Code Ann. § 37-1-107(f) is null

and void. Brown v. Daly, 884 S.W.2d 121 (Tenn. App. 1994). As we read §37-1-

107(f), it requires confirmation by the Juvenile Judge in order for a Referee’s order to

become final. That requirement cannot be changed by a local rule. The Referee’s

order is, however, binding until the Judge rules otherwise. That part of Rule 8.02 is

consistent with Tenn. Code Ann. § 37-1-107(e).

The state has argued that this issue is moot since the prohibition against

granting offsetting credits for social security benefits was repealed by Chapter 551 of

the Public Acts of 1997 (effective July 1, 1997). We fail to grasp, however, the state’s

mootness argument. Repeal of the statute did not affect the controversy over whether

the Referee’s order of October 13, 1995 had become final and beyond the power of

the Juvenile Judge to correct.

III.

We take no position on the effect of the change in the law on July 1,

1997. All matters concerning how that change affects Mr. Russell’s current support

obligation and the amount of his arrearage must be addressed to the Juvenile Court.

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 The judgment of the court below is affirmed and the cause is remanded

to the Juvenile Court of Davidson County for further proceedings. Tax the costs on

appeal to the appellant.

________________________________
BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION

_______________________________
WILLIAM C. KOCH, JR., JUDGE

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