Opinion
No. M2002-00233-COA-R3-JV.
Filed March 27, 2003.
Direct Appeal from the Juvenile Court for Warren County Nos. 1827 1828; Larry Ross, Judge.
Affirmed as modified; and Remanded.
Paul G. Summers, Attorney General Reporter, and Stuart F. Wilson-Patton, Senior Counsel, for the appellant, State of Tennessee Department of Human Services ex rel., Tennessee Department of Children's Services.
Debra Wilson, Pro se .
Woodrow Wilson, Pro se. .
David R. Farmer, J., delivered the opinion of the court, in which W. Frank Crawford, P.J., W.S., joined and Patricia J. Cottrell, J., dissents.
OPINION
This case involves the State's request that the parents of a minor child taken into the State's custody pay child support retroactive to the date the child was taken into custody. The State did not request such support until almost two years after the child was taken into custody. The trial court refused to grant the State support beyond the date of the filing of the petition requesting support. We affirm, as modified.
The Wilsons voluntarily placed their minor child in the physical custody of the Tennessee Department of Children's Services (DCS) on September 10, 1999. On June 12, 2001, DCS filed petitions to set support for a child in State custody against the Wilsons in the Warren County Juvenile Court. The State sought a child support arrearage judgment against Mr. Wilson in the amount of $14,230 and against Mrs. Wilson for $4,728. These amounts reflected the amount of child support due from the date the child was placed in the State's custody to the date of the hearing, in accordance with the Tennessee Child Support Guidelines.
When questioned by the trial court as to why the State had taken so long to request child support from the Wilsons, the State's counsel responded with the following: "I wish I knew, your Honor. I don't know. It appears that there is, or has been, some sort of administrative glitch in the past in getting us notified when a child goes into State custody." We note that the State's counsel on appeal differs from counsel at the trial level.
The trial court inquired as to whether it had discretion to decline to set support back to the date of the change in custody. Not surprisingly, counsel for the parties disagreed on the answer to this query. The trial court subsequently ruled that, because of the delay in filing the petition to set support, back support would only be set from the date of the filing of the petition forward.
The State, not being satisfied with this result, subsequently filed motions to alter or amend the judgments to reflect retroactive child support to the date the child was taken into State custody. A hearing was held at which the State contended that an award of retroactive support was proper, citing Tenn. Code Ann. § 37-1-151 as authority. Both parties agreed that the child was voluntarily placed into DCS's custody. The trial court denied the State's motion, stating that it considered such matters on a case-by-case basis and that, due to the delay from the change in custody until the filing of the petitions to set support, an award of retroactive support was not warranted. This appeal followed.
Standard of Review
Resolution of this issue involves statutory interpretation. It is well settled that statutory interpretation is a question of law. Winter v. Smith , 914 S.W.2d 527, 538 (Tenn.Ct.App. 1995) (citations omitted). We review questions of law de novo with no presumption of correctness afforded the lower court's judgment. Nelson v. Wal-Mart Stores, Inc. , 8 S.W.3d 625, 629 (Tenn. 1999).
Issue
The State presents the issue as follows:
Whether the trial court erred by refusing to award retroactive child support back to the date that the child first went into the physical custody of the Tennessee Department of Children's Services.
The Parties' Arguments
The Wilsons maintain in their brief that they were not informed that they were required to pay child support prior to the filing of the petitions. They further maintain that they questioned the DCS case workers about their responsibility for such support and were told by the workers that they did not think they had such an obligation.
The State maintains that the trial court was "required . . . to award back support from September 10, 1999, the date the child first came into the physical custody of the Tennessee Department of Children's Services, rather than from June 12, 2001, the date of filing the petitions to set support." As support for this contention, the State cites the following provisions of Tenn. Code Ann. § 37-1-151:
(b)(1) Notwithstanding the provisions of subsection (a), placement of a child in the custody of an agency of the state shall make the parents of that child liable for support from the effective date of the court's order . The court's placement of the child's custody with the state shall be deemed as an automatic application by the state, as custodian of the child, for child support services from the department of human services Title IV-D child support program.
(2) In all cases in which the court places physical custody of any child with an agency of the state, and if no prior orders for the support of the child by each parent exist, the court shall immediately order child support or shall set a hearing, which hearing shall be held within forty-five (45) days of the date the child's custody is placed with the state, for the purpose of establishing child support and the provision of medical care, to be paid by each parent to the state for the child placed in the state's custody by the court . Such hearing may be set on the court's next regular child support docket within the forty-five-day period in accordance with the provisions of subdivision (b)(3).
(3)(A) The parents and the Title IV-D office which is enforcing child support under Title IV-D of the Social Security Act for the county from which the child is placed shall receive at least ten (10) calendar days' notice of the child support hearing date unless child support was ordered at the custody hearing.
(B) The notice to the parents shall be in writing and may be given at the time of the hearing at which the child is placed in the custody of the state, and shall include a subpoena to each parent to bring to court any documents showing evidence of income, including, but not limited to, pay stubs, W-2 forms, or income tax returns. If not given to the parents at the hearing at which custody is placed with the state, the notice and subpoena shall be sent by mail to the parents or served upon them personally within five (5) working days of the date of the custody hearing, unless child support is ordered at the custody hearing.
(C) Unless child support is ordered at the custody hearing, within five (5) working days of the date of the custody hearing at which the child is placed in the custody of the state, the clerk shall by mail, personal delivery, or by electronic means if the clerk participates in the statewide child support enforcement computer system pursuant to title 36, notify the office which is enforcing child support under Title IV-D of the Social Security Act for the county from which the child is placed of the date of the child support hearing, the names, addresses, and social security numbers of the parents and child. If support was ordered at the time of the custody hearing, the clerk shall notify the Title IV-D Office of the amount of support which was ordered.
(4)(A) At any hearing at which support is ordered, the court shall set child support as the evidence demonstrates is appropriate and in accordance with the child support guidelines established pursuant to § 36-5-101(e) , and the court shall order the parents to pay the premium for health insurance for the child if the insurance is available at a reasonable cost, or the court shall order the parents to pay a reasonable portion of the child's medical costs. The order for support and for medical care shall be retroactive to the date that custody of the child was placed with the state by any order of the court .
Tenn. Code Ann. § 37-1-151 b(1)-(4)(A) (Supp. 2002) (emphasis added).
We cannot agree with the State's assertion that these statutory provisions mandate an award of retroactive child support relating back to the time the child was initially placed in the care and custody of the State where, as here, there has not been a hearing to set support within forty-five (45) days of the child being placed into the custody of the State, in accordance with Tenn. Code Ann. § 37-1-151(b)(2).
The statute provides that "[t]he order for support . . . shall be retroactive to the date that custody of the child was placed with the state by any order of the court." Tenn. Code Ann. § 37-1-151(b)(4)(A) (2001). The statute also provides, however, that "the court shall immediately order child support or shall set a hearing, which hearing shall be held within forty-five (45) days of the date the child's custody is placed with the state, for the purpose of establishing child support. . . ." Id. § 37-1-151 (b)(2). This was not done in this case. "In interpreting statutes, we are required to construe them as a whole, read them in conjunction with their surrounding parts, and view them consistently with the legislative purpose." State v. Turner , 913 S.W.2d 158, 160 (Tenn. 1995). We believe that section 37-1-151 (b)(2) of the statute, when read in conjunction with section 37-1-151(b)(4)(A), circumscribes the extent to which a parent may be held responsible for retroactive support. Reading these two statutory provisions in concert it is clear that, if the strictures of section 37-1-151(b)(2) are followed, the maximum amount of retroactive child support for which the parents of a child taken into custody of the state could be responsible for is forty-five (45) days.
"[T]he polestar of statutory interpretation has always been the intent of the legislature." Heirs of Ellis v. Estate of Ellis , 71 S.W.3d 705, 712 (Tenn. 2002). With this guiding principle in mind, and considering the legislative mandate that a hearing to set support shall be held within forty-five (45) days of the date that a child is placed in the custody of the State, we do not believe that it was the intent of that same legislature that a retroactive award of support would exceed this forty-five (45) day time frame. We hold, therefore, that where the statutory provisions of section 37-1-151(b)(2) are not followed, and an order of support is not obtained within forty-five (45) days of the date that a child is ordered into State custody, that any award of retroactive child support is statutorily limited to forty-five (45) days.
The majority is cognizant of Tenn. Code Ann. § 34-1-102, cited by the dissent, which requires parents to support their minor children, as well as the statute imposing a like requirement upon parties to a divorce or an action to establish paternity. However, these statutes must be construed in pari materia with Tenn. Code Ann. § 37-1-151. We note that none of these statutes contain a provision, limiting the time in which the action must be brought, similar to that contained in § 37-1-151.
The right to retroactive support is limited, however. Tenn. Code Ann. § 36-2-306 provides that "[a]n action to establish the parentage of a child may be instituted . . . until three (3) years beyond the child's age of majority." Tenn. Code Ann. § 36-2-306(a) (2001). Accordingly, the Tennessee Supreme Court has held that "[r]etroactive 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." Berryhill v. Rhodes , 21 S.W.3d 188, 192 (Tenn. 2000). Accordingly, if an individual waits until after the child's twenty-first birthday to request such support, the obligor will not be legally obligated to pay such support, notwithstanding the fact that parents are obligated to support their children during the child's minority. See Tenn. Code Ann. § 34-1-102 (2001).
The parents were presumably supporting their child until, pursuant to court order, custody was changed form the parents to the State. Because the dictates of § 37-1-151 were not followed, the court did not "immediately order child support" nor "set a hearing, which hearing shall be held within forty-five (45) days of the date the child's custody is placed with the state, for the purposes of establishing child support. . . ." Tenn. Code Ann. § 37-1-151(b)(2) (Supp. 2002). We believe that a reasonable interpretation of this statute is to prevent a situation such as exists in the present case. Application of the statute limits an assessment of retroactive child support to 45 days. Adherence to the statute prevents a situation such as has occurred in the present case where, almost two years after custody is placed with the State, the State seeks to recover several thousand dollars from the parents. The parents in this case were given no guidance by the court as to the amount of their support obligation or to whom it was to be paid. The majority believes it would be manifestly unjust to grant the relief sought by the State where there has been a failure to comply with Tenn. Code Ann. § 37-1-151(b)(2) (Supp. 2002).
The majority can conceive of no other reason for the inclusion of this 45 day provision. Adopting the dissent's position that retroactive support can be ordered in excess of this limit makes the 45 day time limit in which the parents' child support obligation must be established, meaningless.
The January 28, 2000, order of the juvenile court stated that the court found the parents to be indigent. In their brief, as well as at oral argument, the parents take issue with having been so labeled.
Accordingly, it is the majority's belief that the legislature intended to prevent the unjust result of a child being placed in the custody of the State, no hearing being held within forty-five (45) days to establish support, and months, or years, passing before the State petitions the court to set support retroactive to the date the child was placed into custody.
Conclusion
Based on the foregoing, we affirm the decision of the trial court denying the State retroactive child support to the date the child was placed in the custody of the State, but modify the award to include support, not only from the date of the filing of the petition, but to include an additional 45 days of support, retroactive from the date the petition was filed by the State.
This case arises from a proceeding for an initial setting of child support which also included a request that the court award retroactive support. The duty to support existed before the petition or order. It is well settled under Tennessee law that every parent is obligated to support his or her children during their minority. Tenn. Code Ann. § 34-1-102; State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 247 (Tenn.Ct.App. 2000). This obligation to provide support exists without a court order. The obligations of parents to support, care for, and nurture their children are joint, and the extent of their duty to support depends on their ability to provide that support. State ex rel. Grant v. Prograis, 979 S.W.2d 594, 600-01 (Tenn.Ct.App. 1997).
The parent's obligation to support and the child's right to support exist independently of a court order. The legislature, however, has established statutory requirements for the courts to order a set amount of support in some circumstances. For example, when married parents divorce, the court is authorized to provide for support of the minor children. Tenn. Code Ann. §§ 36-5-101(a)(1) (a)(2)(A). When paternity of a child born out of wedlock is established, the father is required to provide support, as set by the court, for the child's benefit. Tenn. Code Ann. § 36-2-311; Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000). The legal duty of support exists in all cases. Id. 21 S.W.3d at 191 (citing Smith v. Puett, 506 F. Supp. 134, 142 (M.D.Tenn. 1980)).
In the situation where the custody of a child is placed with an agency of the state, as here, Tenn. Code Ann. § 37-1-151(b)(1), clearly establishes the obligation of the parent(s) to pay support. Thus, there can be no question that the Wilsons' obligation to provide support arose on the date their child was placed in the custody of the state agency.
Although the court did not set a hearing "for the purpose of establishing support" at the time of the custody hearing, as required by Tenn. Code Ann. § 37-1-151(b)(2), the clerk did not notify the Title IV-D office or the parents of a such a hearing, as required by Tenn. Code Ann. § 37-1-151(b)(3)(C), and although the Department of Human Services did not petition to have support established for almost two years after the child was taken into custody, as opposed to the forty-five (45) day period established by the statute, none of these failings obviates the fact that the Wilsons were liable for child support for their child from the date he was placed in the custody of the Department of Children's Services.
Tenn. Code Ann. § 37-1-151(b)(4)(A) also requires the court, when establishing an initial order of child support, to award retroactive support. That provision directs the court to set the initial and prospective support "as the evidence demonstrates is appropriate and in accordance with the child support guidelines established pursuant to § 36-5-101(e)." It also states, "The order for support and for medical care shall be retroactive to the date that custody of the child was placed with the state by any order of the court." Unlike similar provisions on awards of retroactive support, that provision appears to direct that the amount awarded prospectively shall automatically be used to calculate the amount of retroactive support due. Of course, the entire set of statutes presumes that the amount of support will be initially set within forty-five (45) days of the child being placed in state custody. In that span of time, there is little likelihood that changes in income will have occurred that would affect the amount of support. We also note that the statute allows the court to set the amount of support appropriately in light of the evidence and the child support guidelines. Again, that language differs somewhat from other legislative directives regarding the setting of the amount of support.
Our courts have faced similar issues involving the setting of retroactive support where other situations triggered the duty to support. For example, a biological father of a child born out of wedlock has a duty to support his child, and that responsibility for support arises at the date of the child's birth. State ex rel. Coleman v. Clay, 805 S.W.2d 752, 755 (Tenn. 1991). Even if the father was unaware that he was the child's father, once paternity is established, the courts are to set retroactive child support as well as prospective support. Tenn. Code Ann. § 36-2-311(a)(11); Berryhill, 21 S.W.3d at 192; Kaatrude, 21 S.W.3d at 248.
In Coleman, paternity proceedings were not instituted until the child was fourteen years old, and blood tests conducted at that time confirmed that the defendant was the child's father. The trial court entered a paternity decree and set prospective support. The court also awarded retroactive support only back to the date when blood test results were available which established the defendant was actually the child's father. Id. 805 S.W.2d at 754. The Supreme Court found that "upon determination of paternity, the father of a child born out of wedlock is statutorily liable for support from and after the child's birth." Id. 805 S.W.2d at 755. The court explicitly rejected the trial court's implicit holding that the father's liability is retroactive only to the date on which he knows for certain that he is the child's father.
The Tennessee Supreme Court interpreted the then-existing paternity statutes to authorize a retroactive award for support in conjunction with an order of paternity but also to give the courts broad discretion to determine the amount of such a retroactive award. The court further stated:
The Tennessee Supreme Court has determined that the 1994 inclusion in the guidelines of provisions regarding retroactive support has limited the courts' discretion in making such awards in orders establishing paternity. Berryhill, 21 S.W.3d at 193. Although courts continue to have discretion, the "broad discretion" to determine the amount of retroactive awards described in Coleman, 805 S.W.2d at 755, has been narrowed, and any discretion "must be exercised within the strictures of the Child Support Guidelines." Berryhill, 21 S.W.3d at 193.
What the juvenile judge lacks is discretion to limit the father's liability for child support in an arbitrary fashion that is not consistent with the provisions in [the paternity statutes]. For example, nothing in those sections can be interpreted to restrict the father's liability to the date when he knows for certain that the child in question is his. Such a limitation not only amounts to judicial legislation, but also encourages the putative father to avoid legitimately instituted court proceedings and to delay testing . . . in the hope of minimizing the ultimate support award.
Coleman, 805 S.W.2d at 755.
The same reasoning is applicable herein where the statute clearly establishes the liability of the parents from the date the child is taken into custody and further directs an award of retroactive support to that date. I find no authority in the statute or otherwise for the court to limit that liability to the date a petition is filed.
In a recent case, State ex rel. Clark v. Wilson, No. M2001-01626-COA-R3-CV, 2002 Tenn. App. LEXIS 904 (Tenn.Ct.App. Dec. 23, 2002) (no Tenn.R.App.P. 11 application filed), this court applied similar reasoning to an initial award of support for a child where that support had not been set at the time of the divorce because the court was not informed of the existence of the child. The trial court limited the father's liability for retroactive support to the date that paternity testing proved he was the biological father. We reversed because: (1) the father was the presumptive father under Tenn. Code Ann. § 36-2-304(a)(1) and that presumption was affirmed rather than rebutted by later blood tests administered pursuant to the action to establish paternity; (2) support was not set prospectively at the time of divorce because the existence of the child was not disclosed, and neither one parent nor both can by agreement deprive the child of his or her right to support, Berryhill, 21 S.W.3d at 191-92; Witt v. Witt, 929 S.W.2d 360, 363 (Tenn.Ct.App. 1996); (3) at the time the initial prospective support was set, the court was required to enter judgment for "an amount due for monthly support from the date of . . . separation . . . until the current support is entered," Tenn. Comp. R. Regs., ch. 1240-2-4-.04(1)(e); and (4) the court had no discretion to limit the father's liability for support in a fashion not consistent with the statutes and guidelines, Coleman, 805 S.W.2d at 755. We remanded for the trial court to establish the amount of retroactive child support using the child support guidelines, including any deviation if warranted.
Again, the reasoning of that case is applicable herein. The parents had a duty to pay support from the date the child went into state custody. The court was statutorily directed, upon establishment of the initial support order, to establish the amount of retroactive support due to the date the child was placed with the state. Tenn. Code Ann. § 37-1-151(b)(4)(A). I find no authority for the court to limit the liability for back support. In other words, I differ with the majority on the consequence of the statutory directive that support be set within 45 days.
As equitable as the trial court's decision may be in light of the state's conduct herein, I can find no allowance in the statute for deviation from its directives in terms of the duration of the obligation even on an equitable basis.
In Berryhill, the Court considered the trial court's conclusion that an award of retroactive support sought after the child reached majority would be unfair and would unreasonably and unjustly enrich the mother. The Court stated:
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 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 the time permitted by the statute. Furthermore, courts are required to apply the Child Support Guidelines as a rebuttable presumption in determining support, and the 1994 guidelines explicitly provide "that the rebuttable presumption must be applied to all child support awards even if the order is being sought for a retroactive period before October 13, 1989." This Court has held that the guidelines "carry what amounts to a legislative mandate." Nash v. Mulle, 846 S.W.2d 803, 804 (Tenn. 1993). Accordingly, the mere action of seeking an award of retroactive child support within the time frame permitted by statute cannot render a request for child support either "unjust" or "inappropriate."
Berryhill, 21 S.W.3d at 192 (some citations omitted).
However, the amount of retroactive support due is another question. Although the statute states that the amount of support set initially "shall be retroactive" to the date the child went into custody of the state, it also states that support shall be set "as the evidence demonstrates is appropriate and in accordance with the child support guidelines. . . ." Tenn. Code Ann. § 37-1-151(b)(4)(A).
In Berryhill, the Tennessee Supreme Court determined that, since the 1994 inclusion in the guidelines of provisions regarding retroactive support, any discretion a court might have in setting such support "must be exercised within the strictures of the Child Support Guidelines." Berryhill, 21 S.W.3d at 193. That case dealt with establishment of retroactive support in conjunction with the initial setting of support upon the determination of paternity.
Under the guidelines:
In cases where initial support is being set, a judgment must be entered to include an amount due for monthly support from the date of the child's birth or date of separation or date of abandonment whichever is appropriate, until the current support order is entered.
Tenn. Comp. R. Regs., ch. 1240-2-4-.04(1)(e).
Under the guidelines, in cases where initial support is being set, a judgment must be entered to include an amount of retroactive support due, and the amount of past support:
must be calculated based upon the guidelines using the average income of the obligor over the past two years and is presumed to be correct unless rebutted by either party. An amount should be included in the order to reduce the arrears judgment on a monthly basis within a reasonable time.
Tenn. Comp. R. Regs., ch. 1240-2-4-.04(1)(e).
Having established the amount of retroactive support which would have been due under the guidelines, the court has the discretion to determine whether facts exist to justify a deviation from the guidelines. Tenn. Code Ann. § 36-5-101(e)(1)(A) provides that:
In making its determination concerning the amount of support of any minor child or children of the parties, the court shall apply as a rebuttable presumption the child support guidelines as provided in this subsection. If the court finds that evidence is sufficient to rebut this presumption, the court shall make a written finding that the application of the child support guidelines would be unjust or inappropriate in that particular case, in order to provide for the best interest of the child(ren) or the equity between the parties. Findings that the application of the guidelines would be unjust or inappropriate shall state the amount of support that would have been ordered under the child support guidelines and a justification for the variance.
In addition, the guidelines require that the amount due under the guidelines be established first as a rebuttable presumption as to the correct amount, which can be rebutted by a written or specific finding "that the application of the guidelines would be unjust or inappropriate" in that case. Tenn. Comp. R. Regs., ch. 1240-2-4-.01(2). "Findings that rebut these guidelines must state the amount that would have been required under the guidelines and include a justification for deviation from the guidelines which takes into consideration the best interest of the child." Tenn. Comp. R. Regs., ch. 1240-2-4-.02(7).
The Supreme Court has specifically directed application of these provisions to a retroactive support award. Berryhill, 21 S.W.3d at 193. The court further explained:
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. The guidelines also mandate a deviation upward under certain circumstances. The guidelines are a minimum base for determining child support obligations. "The 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). "Although the rule does not purport to set forth an exhaustive list of instances in which downward deviation is allowed, these specific instances nevertheless are a powerful indication as to the types of situations in which it is contemplated under the guidelines." Jones, 930 S.W.2d at 545. The guidelines indicate that the court "shall" increase the award if the obligor is not providing health insurance, if the obligor is exercising less than average visitation, if extraordinary medical and educational expenses exist, or if the court finds that equity requires it.
Id. (some citations omitted).
Thus, Tenn. Code Ann. § 36-5-101(e)(1)(A) and the guidelines take into consideration the justness or equity of the award. While the Supreme Court's language quoted above implies that deviations downward are limited, the Court also recognizes the trial court's authority to consider the equities of the situation. In most situations, it is the obligee parent who seeks retroactive child support, and the equities involved when a state agency seeks support for a child in its care may be different. The goal of statutes and regulations governing child support is to assure that children receive support reasonably consistent with their parent's or parents' financial resources. Kaatrude, 21 S.W.3d at 248-49. The Child Support Guidelines state one of their goals is to "ensure that when parents live separately, the economic impact on the child(ren) is minimized . . . ." Tenn. Comp. R. Regs., ch. 1240-2-4-.02(2)(e).
The statute governing the support obligation for a child in custody of a state agency recognizes that support should be set "as the evidence demonstrates is appropriate" and in accordance with the guidelines. In addition, Tenn. Code Ann. § 37-1-151(b)(6)(D) provides:
Any child support funds remaining with the state after the child is returned to the physical custody of either parent or other custodian by court order shall be returned to the custodial parent or other custodian named in the order for use in the care of the child after reimbursement to the state of such costs incurred for the child's care by the state which are not otherwise prohibited by state or federal law or regulation.
This provision recognizes that the state agency's right to child support is not identical to that of the child or the obligee parent. Where the amount of support due under the guidelines exceeds the agency's costs, apparently the agency is not entitled to the surplus. The record before us does not include any information regarding the actual costs.
Consequently, I would remand to the trial court with instructions to apply the guidelines by, first, determining the amount of retroactive support that would have been due under the guidelines and, then, after giving the parties the opportunity to present additional evidence, determining whether a deviation from the presumptive amount is warranted and making necessary findings if the court reaches that conclusion.