Facts: In 2014, Mother sued to establish paternity and recover retroactive child support for a child born 18 years earlier.

DNA testing revealed that Father is the child’s biological father.

Mother explained that she was in college when the child was born, so she consented that the child be placed in the legal guardianship of her parents so the child could be added to his grandfather’s health insurance policy.

The testimony was undisputed that Father never visited with or provided financial support for the child.

After crediting Father with 80 days of parenting time each year, the trial court determined Father’s retroactive child-support obligation to be $127,000.

Father appealed.

On Appeal: In a 2-1 decision, the Court reversed the trial court.

Father argued the trial court erred by crediting Mother with 285 days of parenting time because of the legal guardianship granted to her parents.

Juvenile courts have jurisdiction to establish paternity of a child when the putative father resides in Tennessee. Once a court has establish paternity, Tennessee Code Annotated § 36-to-311(a)(11)(A) requires the court to enter an initial child support order, including an award of retroactive child support, if applicable.

When calculating child support, Tennessee courts must follow the Child Support Guidelines. Because each parents’ child-support obligation is offset based upon the number of days he or she actually exercises parenting time, the Child Support Guidelines require that the child-support worksheets reflect the number of days each child spends with each parent.

A majority of the Court held that the trial court erred by crediting Father with parenting time he never exercised:

In this case, because the entirety of Father’s child-support obligation is retroactive, we have the rare benefit of hindsight. Mother testified that Father never supported the child or visited the child. When asked how many nights [the child] had ever spent with Father, Mother responded, “[h]e hasn’t spent any nights with [Father].” Mother testified that she did not know why Father never visited or contributed to [the child’s] support, and she stated that she never indicated to Father that she would prevent visitation or refuse monetary support for [the child]. Father testified that he has known [the child] was his biological child since the child’s birth, but Mother refused to allow [the child] to visit with him. Father testified, however, that he never provided support of any kind to [the child], had never visited with the child, or attempted to initiate legal proceedings for a court to establish visitation.

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[T]here is no factual or legal basis in the record to support the [trial court’s] finding that Father should be credited with 80 days of parenting time. The evidence in the record clearly indicates that Father exercised zero parenting days. . . . Accordingly, we must vacate the trial court’s judgment as to the calculation of retroactive child support and remand so that child support may be calculated based on the actual number of days Father exercised parenting time.

Thus, the trial court’s judgment is reversed, and Father’s retroactive child-support obligation will increase substantially after Father receives no credit for parenting time.

Dissent: Judge Clement dissented from the majority opinion. He pointed out that the appellate courts have consistently held that an issue not raised in a statement of the issues may be considered waived.

Because neither party contends that Father should have been allocated less than 80 days of parenting time, I submit that we need not and, indeed, should not consider whether Father should have been allocated less than 80 days of parenting time in calculating child support.

K.O.’s Comment: (1) While I concede Judge Clement’s point, I would have voted with the majority here.

(2) Consider how the new five-year limit on retroactive child-support awards in Tennessee Code Annotated §§ 36-2-311(a)(11)(G) and 36-5-101(e)(1)(l) would have affected the outcome. Alas, both provisions only apply to actions for retroactive child support filed after July 1, 2017.

State ex rel. Schrita O. v. Robert T. (Tennessee Court of Appeals, Western Section, November 16, 2017).