Family law--Berryhill v. Rhodes: Attempts to circumvent child support obligations through...

On September 5, 1977, Betty Berryhill gave birth to Anika L. Berryhill.1 Anika Berryhill's father was Dr. Charles T. Rhodes.2 Dr. Rhodes and Ms. Berryhill entered into a private agreement3 IMAGE FORMULA 7

requiring Dr. Rhodes to pay for their child's delivery and related expenses not covered by Ms. Berryhill's insurance and to send monthly child support payments to Ms. Berryhill until September 1995, when Anika turned eighteen years old.4 During these eighteen years, Ms. Berryhill requested that Dr. Rhodes increase the amount of the monthly payment, but he refused her requests.5

One month following the termination of payments, Ms. Berryhill filed a petition with the court to establish her child's paternity and to collect additional child support for the previous eighteen years.6 The judge in the juvenile court, following a referee's recommendation,7 ruled that Dr. Rhodes was the biological father,8 that the child's parents had entered into a valid child support agreement, and that granting Ms. Berryhill's request for additional child support would unjustly enrich her.9 The court IMAGE FORMULA 9

of appeals upheld the trial court's ruling on all the issues except the issue of who should pay for the paternity test and attorney's fees.10 The appeals court vacated the decision and remanded the case to settle the fee-related issues.11 After granting an application for permission to appeal, the Tennessee Supreme Court held, remanded. 12 Private agreements between parents that are used to circumvent the child support obligations set forth in the statutes and guidelines are invalid because they violate public policy. 13 IMAGE FORMULA 11

Berryhill v. Rhodes, 21 S.W.3d 188, 192 (Tenn. 2000).

Tennessee has long recognized that a father has a duty to support his legitimate children. 14 For example, in Toncray v. Toncray 15 the Tennessee Supreme Court stated that the "parent is bound by positive laws to protect, to educate, if able to do so, and to maintain his child during its minority" or until the child voluntarily leaves the parent's protection.16 The parent's duty to support a child, however, was originally part of a reciprocal relationship.17 This reciprocal requirement was abolished in Evans v. Evans.18 IMAGE FORMULA 13

With the passage of the Acts of 1915, the Tennessee legislature further expanded upon a father's obligation to pay child support. 19 These acts made failure to pay child support for a child under sixteen years of age a misdemeanor. 20 The Tennessee Supreme Court further criminalized the failure to pay child support in State v. Barnes, 21 holding that a father who fails to provide proper medical treatment may be liable for manslaughter or murder.22 In addition to the supreme court's criminalization of the failure to pay child support, the Tennessee legislature also expanded the duty of support so that it would apply equally to the IMAGE FORMULA 15

mother and father,23 and the court of appeals recognized claims for retroactive payments, allowing a parent to collect past unpaid support.24 The legislature also extended a parent's obligation of support to cover non-marital children.25 Furthermore, the Tennessee Supreme Court addressed the issue of court settlement modification in Sutton v. Sutton,26 a case in which the plaintiff filed suit to alter a divorce settlement agreement.27 The court held that statutory authority gave the court sole authority to amend such settlement agreements.28

In 1975, the Tennessee Supreme Court heard two cases dealing with child support agreements between parents. The first case heard was Penland v. Penland.29 In Penland, an agreement between the parents requiring Mr. Penland to pay for all future IMAGE FORMULA 17

educational expenses beyond high school was incorporated into their divorce decree.30 The court determined that Mr. Penland's obligation to pay the educational expenses arose from a contractual duty rather than a legal duty.31 The court then held that when an agreement between parents deals with a legal duty, that legal duty "becomes merged into the decree and loses its contractual nature";32 however, aspects of an agreement that extend beyond a legally imposed duty retain their contractual nature.33 Therefore, the agreement requiring the father to pay for post-majority educational expenses was enforceable under contract law.34

The second case before the Tennessee Supreme Court in 1975 dealing with the enforceability of private child support agreements between parents was Blackburn v. Blackburn.35 Blackburn arose from a dispute over a divorce decree granted more than ten years earlier.36 The father claimed that a change in the law had relieved him of his child support obligations.37 The lower court IMAGE FORMULA 19

examined the original divorce decree, in which the chancellor incorporated the parents' child support agreement into the judgment, and held that the father had to resume child support payments. 38 The father appealed the decision on grounds that the ruling forced him to pay child support for a period longer than required by law. 39 The supreme court stated that agreements between parents are not binding on the court but are examined as evidence that the court may take into consideration. 40 When an agreement is incorporated into a decree, the agreement loses its contractual qualities. 41 In a three-to-two decision, the supreme IMAGE FORMULA 21

court reversed the lower court, holding that Tennessee law relieves the father of child support obligations when the child becomes eighteen.42 The court also restated its holding in Penland that agreements concerning "matters outside the scope of the legal duty of child support" are enforceable as contracts.43

The dissent in Blackburn stated that the real issue at the heart of the case was the enforceability of child support agreements between parents.44 The dissenting justices pointed to Penland, in which the court held that the aspects of the agreement that extended beyond legal obligations may still be enforceable under a contract theory.45 The dissenting justices concluded that the court should have held that the private child support agreement was valid as an enforceable contract.46 IMAGE FORMULA 23

In the 1991 Tennessee Supreme Court case State ex rel. Coleman v. Clay,47 the court re-examined the issue of child support for children born out of wedlock and also re-examined the issue of retroactive child support awards.48 The court reaffirmed that parents of non-marital children have an obligation to support those children.49 The court acknowledged that a parent is responsible for retroactive child support dating back to the birth of the child.50 IMAGE FORMULA 25

In 1988, in order to comply with federal law and receive federal funding,sl the state legislature adopted child support guidelines.52 The child support guidelines establish a rebuttable presumption with regard to how judges determine the amount to award in child support.53 In the 1996 case Jones v. Jones,54 the IMAGE FORMULA 27

court examined when it would be permissible to deviate downwardly from the child support guidelines.55 The court enumerated the following three instances where such a downward deviation would be permissible:56

(1) where DHS [Department of Human Services] has taken custody of the children) pursuant to a neglect, dependency, or abuse action; (2) where the children) spend more visitation time with the obligor than is assumed by the guidelines; and (3) in cases in which the obligor is subjected to an "extreme economic hardship," such as where other children living with the obligor have extraordinary needs.57

While the court noted that the list is not exhaustive of all situations in which a downward deviation from the guidelines would be permissible, the list does describe the type of situations that should be considered in making a downward deviation decision.58 In IMAGE FORMULA 31

Jones the supreme court held that the mother was not entitled to a downward deviation from the child support guidelines because the trial court "failed to articulate sufficient grounds to rebut the presumption that the guidelines [were] applicable."59

With the adoption of the child support guidelines as the basis for all child support awards, the issue of whether parents can enter into private agreements that deviate from the guidelines was unclear when Berryhill v. Rhodes came before the Tennessee Supreme Court.60 The court began its analysis of the validity of private child support agreements by examining the governing statutory framework.61 The court acknowledged that section 36-5-- 101(h) of the Tennessee Code 62 contemplates that parents will IMAGE FORMULA 33

enter into an agreement and provides a mechanism to incorporate the agreement into a divorce decree.63 At first glance, section 36-5101(h) appears to recognize all agreements, even those agreements that reduce child support or eliminate it entirely.64 The supreme court, however, drew a distinction between "agreements" and "private agreements."65 The court defined a "private agreement" as "an agreement entered into by the parties without court approval."66 An "agreement," as the term is used in section 36-5101(h), must comply with four elements.67 The agreement must: (1) be in writing; (2) be approved by the court; (3) "be incorporated into a court order"; and (4) "contain the parties' acknowledgment that they may not alter the agreement without court approval."68 The court readily acknowledged that agreements that comply with these four elements are valid.69 The issue for the court then was to determine the validity of private agreements or agreements that do not meet these four requirements.70

Having never addressed the specific issue of the validity of private child support agreements, the court examined how other states have addressed the issue.71 Discussing cases from Arkansas,72 Georgia,73 Michigan,74 and other jurisdictions,75 the IMAGE FORMULA 35IMAGE FORMULA 37

court noted that other state courts have repeatedly concluded that a child's right to support =cannot be waived by a private agreement between its parents.76 After considering these cases, the court stated that private agreements cannot provide a means for parents to avoid their child support obligations.77 Like the courts in the other jurisdictions, the Tennessee Supreme Court held that parents have an obligation to support their children 78 and that a private agreement allowing fathers to avoid their child support responsibilities runs contrary to public policy and hence is void. 79

The court then addressed the issue of whether any additional child support payment should be given to Ms. Berryhill retroactively. 80 Although Tennessee statutes 81 and guidelines 82 clearly permit retroactive awards, the important question is how much discretion does the court have in determining the amount of such awards.83 The appeals court in Berryhill, citing the 1991 Coleman 84 decision, had categorized the trial judge's discretion as IMAGE FORMULA 39

broad.85 The supreme court, however, pointed out that Coleman predates the guidelines on retroactive awards 86 and that the current provisions for retroactive awards should be considered the "minimum base for determining child support."87 Thus, before the trial judge may use discretion to deviate from the guidelines, the judge must first make a determination of what child support payments would be owed under the guidelines.88 If the trial judge concludes that a deviation from the guidelines is appropriate, he is required to submit a written account of why the guidelines are inappropriate to that specific case.89 The case was, therefore, remanded so that a trial judge could "determine the amount of child support that would be due under the guidelines as well as the appropriateness of any deviation."90 The court concluded its opinion by restating that private agreements concerning child IMAGE FORMULA 41

support payments violate public policy.91

Justices Birch and Barker concurred with the majority that the case should be remanded so that a trial court could determine if deviating from the child support guidelines would be appropriate in this case, but they dissented from the majority's holding regarding the invalidity of private child support agreements.92 These concurring/dissenting justices did not draw a distinction between "agreements" and "private agreements" as did the IMAGE FORMULA 43

majority, and they stated that the majority's opinion was unclear as to whether private agreements are "per se void, void on a case by case basis, or voidable."93 They noted that private child support agreements should be encouraged within certain limits and subject to judicial modification.94 Looking first to the child support statute itself,95 the dissenting justices stated that the plain language clearly and unambiguously allows private child support agreements. 96 While agreeing with the majority's policy that parties cannot act to reduce their child support obligations,97 the concurring/dissenting justices concluded that the court is bound to follow the language of the legislature, 98 which would make private agreements valid.99 IMAGE FORMULA 45

For two centuries the lawmakers of Tennessee have established the policy that parents have an obligation to support their children.100 Through those years, the court and the legislature have continually advanced this policy, reducing the means by which parents can avoid their obligations.101 The supreme court's decision in this case is the most recent advancement of this policy. This advancement, however, does not come without cost or criticism.

The dissenting justices espoused one criticism of the decision. 102 The dissenters found the language of section 36-5101(h) of the Tennessee Code plain and unambiguous.103 In their view, the court circumvented a legislative act by redefining the unambiguous word "agreement" so as not to include a "private agreement."104 By doing so, the majority engaged in policy making instead of policy interpretation.105 The state legislature may wish to address specifically the definition of a child support agreement and make its intent clear by amending section 36-5-101(h). The dissent's view, however, may have ultimately produced the same outcome as the majority's view.106 IMAGE FORMULA 47

Another criticism of the decision is that it has the potential to open a floodgate of litigation. With the majority's proclamation that private agreements are void, every custodial parent currently receiving child support under a private agreement now has grounds to bring an action against the non-custodial parent for additional support. In cases where the non-custodial parent is withholding money, a challenge to the private agreement may have a positive outcome; however, the potential number of claims that may be filed as a result of this decision may inundate the juvenile court system to a point where justice will suffer at the expense of judicial expediency.

In some of the cases likely to be brought as a result of this decision, the non-custodial parent may not be aware that he or she is not paying enough child support. If a couple has been operating under a private agreement and the non-custodial parent fulfills his obligation under that agreement, he would not be aware that he is not paying enough. If that private agreement is challenged, the non-custodial parent may unexpectedly face paying a large amount of money. Having assumed that his obligations were met, the noncustodial parent would most likely have spent that money on items that he otherwise would not have purchased.

One final criticism revolves around the ultimate outcome of cases like Berryhill-who will ultimately get the money awarded? If money is awarded, presumably the non-custodial parent has not been paying enough in child support. In situations where the noncustodial parent did not pay his or her fair share and the custodial parent made up the difference out of his or her own pocket, the money should go to reimburse the custodial parent.107 If, however, the custodial parent could not afford to make up for the lack of IMAGE FORMULA 50

child support, the money should actually go to the child. 108 Ultimately, though, the benefits any child receives as a result of child support payments is determined by the custodial parent. The problem of who actually receives the child support is a problem inherent in the concept of child support. The court, or the court and the state legislature, may one day wish to further address the issue to help ensure that the child actually receives the benefit of child support in all child support cases.

Essentially, the court's decision in this case upholds the policy that parents have a duty to support their children. Despite criticisms, this decision closes a door that might allow some parents to skimp on their obligation to their children. The state has a legitimate interest in ensuring that the children within its jurisdiction receive adequate support. To that end, the court must approve all child support agreements. All agreements not court approved are void, thereby removing the possibility that a parent might attempt to contract their parental obligations away. Because the children are the innocent victims of all parental disputes, to the extent that Berryhill adds additional protection and provides more for those innocent children, it is an equitable decision. IMAGE FORMULA 52