Recently in Child Support Category

Post-Majority Child Support Modification Reversed for Lack of Sufficient Basis

August 1, 2013 by The McKellar Law Firm, PLLC

In the case titled Johnston v. Harwell, No. M2012-01808-COA-R3-CV, WL 3788258 (Tenn. Ct. App. July 16, 2013) Knoxville family law attorneys learn how Tennessee law deals with child support orders from other states that allow for child support obligations for children over the age of majority, which contradicts Tennessee law.

Facts: Mother and Father were married and had two children in Hawaii where Father was stationed while in the military. In October 2003, a final decree of divorce was entered by the Circuit Court in Hawaii. While living in separate states, the court designated Mother as the primary residential parent ("PRP") for the children. This was to be changed to joint custody once she and the children moved to where the Father lived. It was determined by the Hawaii court that Father was to pay child support through any post-high school education or until the age of 23, whichever occurred first. After the divorce in Hawaii was final, Mother and the children moved to Tennessee as planned. However, they never moved to Virginia.

In 2006, Father filed a Petition to Enroll Foreign Decree Granting Absolute Divorce and Awarding Child Custody and For Enforcement and For Contempt in the Chancery Court of Maury County, Tennessee. This litigation went on for three years, and at some point during this time Father also moved to Tennessee. In 2009, the parties and the trial court entered an agreed order that Tennessee assumed jurisdiction; that the Hawaii divorce decree was enrolled in Tennessee; an agreed Parenting Plan; and Father was ordered to pay support. Because the duration of the child support payments was not addressed, the Tennessee court incorporated its Agreed Order and the Hawaii divorce decree as the Order of the Court.

In 2011Father requested the court to modify the child support, in accordance with Tennessee law, to cease when the children were age eighteen and had graduated from high school. Father argued that the current child support agreement was not supported by Tennessee law and, therefore, should be modified.

Mother argued that the trial court lacked the authority to modify the duration of the child support as set forth in the Hawaii divorce decree. Her argument relied upon the Uniform Interstate Family Support Act ("UIFSA") located in Tenn. Code Ann. § 36-5-2201 and Tenn. Code Ann. § 36-5-2615, which governs jurisdiction and enforcement of orders for matters that cross state lines. Mother asserted the statues only allow for Tennessee to modify Hawaii's order as to "those portions of the decree that would be modifiable under [Hawaii's] state law." Mother also asserted the 2009 parenting plan ordered in Tennessee did not nullify the duration of the child support set forth in the Hawaii divorce decree.

The trial court heard arguments on the child support modification matter in July 2012. In its order it found the following:

• The Hawaii divorce decree was a child support order as defined in Tenn. Code Ann. § 36-5-2101(2) and Hawaii was the "issuing" state for the child support order as defined in Tenn. Code Ann. § 36-5-2101(13).
• Tennessee was the home state, as defined in Tenn. Code Ann. § 36-5-2101(8) for at least six months.
• The Hawaii divorce decree was registered in Tennessee in based on the statutory definition of "register" in Tenn. Code Ann. § 36-5-2101(21).
• Hawaii no longer had "continuing, exclusive jurisdiction over [the] child support order" due to the parties no longer being residents of the state.
• The Hawaii decree had been modified after it was registered in the state of Tennessee by agreement of the parties.
• In accordance with UIFSA, any "[m]odifiation[s] of the registered child support order is now an intrastate matter," because all of the parties were residents of Tennessee pursuant to Tenn. Code Ann. § 36-5-2613(a).

Upon its finding that the matter qualified as an intrastate matter in accordance with UIFSA, the trial court found UIFSA to require it to apply "the procedural and substantive law of [Tennessee] to the proceedings for enforcement and modification," of the Hawaii divorce decree. In its interpretation of UIFSA, the trial court advised that it could not modify any portion of a child support order registered in Tennessee that is not modifiable under the law of the issuing state, Hawaii. It found Hawaii law to allow for modification of child support orders, including any provisions for child support of adult children who are "full-time post high school students." It also found that the modified, agreed parenting plan did not establish duration for the obligation of the support.

Once the trial court determined the divorce decree was modifiable according to Hawaii law, it applied Tennessee procedural and substantive law to Father's request to modify his support obligation. In accordance with Corder v. Corder, 231 S.W.3d 346, 355-56 (Tenn. Ct. App. 2006), the trial court found that Tennessee does not require child support for children that are age eighteen and graduates of high school. In its order the trial court stated it had, "no authority to order [Father] to pay child support for his adult [children] who [have] graduated from high school."

Mother appealed the decision. She argued that the trial court erred in claiming subject matter jurisdiction under UIFSA to modify the child support order from the divorce decree in Hawaii. Alternatively, she argued that even if the trial court had the subject matter jurisdiction, it erred in its decision that the child support provision was modifiable under Hawaii law. Father countered her argument by averring the trial court acted appropriately in applying Tennessee substantive law to the child support modification, because the child support was modifiable under Hawaii law.

Analysis: The appellate court determined that UIFSA did not govern this matter due to the Act's concept of "continuing exclusive jurisdiction," as interpreted by the Supreme Court in Letellier v. Letellier, 40 S.W.3d 490, 493 (Tenn. 2001). The Supreme Court explained "[a] state that issues a support order has continuing exclusive jurisdiction over that order. No other state may modify that order as long as the issuing state has continuing exclusive jurisdiction." Id.

According to Tenn. Code Ann. § 36-5-2205, if an issuing state has continuing exclusive jurisdiction, a Tennessee court may modify an out-of-state child support order only after the order is registered in Tennessee so long as the statutory requirements are met. However, the issuing state loses continuing exclusive jurisdiction under circumstances that are listed in Tenn. Code Ann. § 36-5-2205. The comments on the statute in pertinent part states "if all relevant persons--the obligor, the individual obligee, and the child--have permanently left the issuing state, the issuing state no longer has an appropriate nexus with the parties or child to justify exercise of jurisdiction to modify." The comments on the statute go on to state the issuing state can also lose continuing exclusive jurisdiction "if the parties consent in writing for another state to assume jurisdiction to modify." Id.

The appellate court reasoned that for the purposes of this appeal it was clear that Hawaii lost its continuing exclusive jurisdiction since the parties no longer lived in the state. Further, Tennessee gained continuing exclusive jurisdiction when the parties consented for the Tennessee trial court to adopt the Hawaii divorce decree as an Order of the Court.

Turning to Mother's subject matter jurisdiction argument, the appellate court found that for the foregoing reasons Mother's argument was invalid. All of Mother's arguments regarding the issue were based on UIFSA which the appellate court had already deemed did not apply.

Because the child support order was enrolled by agreement of the parties in Tennessee, which made it a Tennessee order, it was subsequently modifiable under Tennessee law. However, according to Tennessee statute, in order to modify a child support obligation the party must show a "material change in circumstances." Father in this case did not assert any material changes or any change or reason at all to warrant a modification of the child support and therefore the trial court's modification was unwarranted.

Conclusion: The appellate court reversed the modification of support and remanded the matter back to trial court. Costs of the appeal were taxed to Father.

Father's Obligation to Pay For Private School Reversed; Award of Attorney's Fees Denied to Mother Due to Allocation of Assets

In the case titled Kraus v. Thomas, No. M2012-00877-COA-R3-CV, 2013 WL 2612458 (Tenn. Ct. App. June 7, 2013) Knoxville family lawyers learn when an upward deviation of child support is appropriate regarding educational expenses as well as what test should be applied when ordering a party to pay attorney's fees.

Facts: Husband and Wife were married for fifteen years and had four minor children ages 12, 10, 8, and 7 at the time of their divorce. In its Final Order, the trial court decided the following:

• Wife was designated the primary residential parent ("PRP") and awarded Wife 280 days of parenting time per year and Husband 85 days;
• Wife was awarded sole decision-making regarding the children's non-emergency health care and extracurricular activities and the children's education including whether they would continue to be enrolled in private school, and the parties were awarded joint decision-making regarding religious upbringing;
• Husband was ordered to pay $625 per month in child support until the youngest child finished pre-school at which time it would increase to $1,252 per month; Husband was also ordered to make an application for financial aid for the children's private schooling;
• Husband and Wife were ordered to seek financial assistance to cover further expenses for private schooling from an irrevocable trust for which Husband and the children were beneficiaries. (If the Trustee did not cover the full balance for the private schooling it was ordered that Husband pay 75% of any remaining cost or $16,875, whichever was less, per school year for the three oldest children); Wife was required to pay any additional expenses associated with private schooling over and above the court's ruling on the matter;
• Wife was awarded 60% of the marital property and Husband was ordered to pay Wife's attorney's fees of $50,000.00.

Husband appealed the trial court's ruling in regarding the expenses for private school and the award of attorney's fees to Wife.

Analysis & Conclusion: On appeal, Husband argued the trial court erred in ordering him to pay an upward deviation in child support to accommodate private school expenses and did not apply and/or consider Tennessee Child Support Guidelines in its decision on same. Father argued that the trial court's decision regarding these expenses represented more than one-fourth of his gross income.

A court may order a deviation on the amount of child support so long as the deviation complies with Child Support Guidelines and the amount of the deviation is within the scope of the court. Tenn. Comp. R. & Regs. 1240-2-4-.07(1)(b). However, the court must stipulate in its order the reason for the deviation and the amount the child support would have been without the deviation. Tenn. Comp. R. & Regs. 1240-2-4-.07(1)(b). The court must also explain how the application of the presumptive amount of child support was not appropriate in the matter, and how the deviation supports the best interests of the child(ren). Tenn. Comp. R. & Regs. 1240-2-4.07(1)(a)-(c).
When a trial court deems a deviation from the presumptive amount of child support to be appropriate, it must consider all income of the parents. It must also make a written finding that the deviation is reasonably necessary to provide for the needs of the children. Tenn. Comp. R. & Regs. 1240-2-*4-.07(2(a) (2008).

The Tennessee Child Support Guidelines specifically address extraordinary educational expenses, and allow these expenses to be added to a child support order as a deviation. However, to determine the amount of the deviation, the Guidelines provide that any "scholarships, grants, stipends, and other cost-reducing programs received by or on behalf of the child shall be considered." Tenn. Comp. R. & Regs. 1240-2-4-.07(2)(d).

The appellate court here noted that the trial court never referenced the Tennessee Child Support Guidelines in its order, only mentioning that private school was in the best interest of the children. It also found no analysis for the deviation by the trial court as is required by the Guidelines. Because of this, the appellate court had to determine if the facts supported a deviation for the extraordinary educational expense should the Trust not cover all of the private school expenses for the children.

The appellate court determined that Husband had a monthly gross income of $4,138.55 plus $1,083 in monthly IRA distributions. This made his monthly gross income $5,221.55 or $62,658.60 annually. It also factored his child support obligation of $1,252 per month ($15,024 annually), his obligation to pay life insurance premiums ($4,400 annually), his obligation to pay one-half of summer camp expenses for the children ($2,465 annually), and his obligation to pay one-half of any out-of-pocket medical expenses for the children ($600 annually). When adding these expenses together, Husband's annual obligations totaled $22,500. The court determined that Husband's potential obligation for private schooling would be $16,875 for the older three children. This would make Husband's total annual obligation $39,000 if the cost of private schooling was added. The appellate court determined this to be 74% of Husband's net income ($52,220). The Court of Appeals determined that this percentage was not appropriate and reversed the upward deviation for private schooling.

On the issue of attorney's fees, Husband argued that the trial court erred in ordering him to pay Wife's attorney's fees of $50,000 from his share of the marital property.

An award of attorney's fees is appropriate when a disadvantaged spouse's income is not sufficient to cover the costs. This type of award is treated as alimony in solido, and trial courts are given wide discretion when awarding it. When alimony issues are on appeal it must be proven that the trial court abused its discretion in its award. To prove abuse of discretion it must be shown that an incorrect legal standard was used, an illogical result was reached, there was an erroneous assessment of the evidence, or the trial court relied on reasoning that caused an injustice to a party.

During trial, it was determined that Wife did not have the income to pay for her attorney's fees; however, she was awarded 60% of the marital property including 60% of the cash proceeds from the sale of the marital home valued at $207,033.95. The appellate court also noted that Wife's income was more than Husband's. For these reasons, the appellate court found that the trial court made an erroneous assessment of the evidence and reversed the award of Wife's attorney's fees.

One Party's Failure to Pay A Property Settlement Does Not Relieve Other Party's Child Support Obligation

In the case of Cantrell v. Cantrell, No. M2012-01847-COA-R3-CV (Tenn. Ct. App. May 23, 2013), Knoxville divorce lawyers learn that one party's failure to timely pay a property settlement does not relieve the other party's child support obligation.

Facts: The parties divorced in 2008. In 2012, Wife filed a Petition for Contempt based upon Husband's failure to comply with the terms of the divorce. Husband also had a pending Petition to Set Child Support, and the two issues were heard on the same day. The trial court ordered the following: Husband would pay to Wife $20,000 in sixty (60) days; Wife would retrieve all property within sixty (60) days and child support would be paid by Wife of $281 per month from 2008-2011. Wife appealed, arguing that she should not have been ordered to pay child support and that the trial court should have imposed further punishment on the Husband for his failure to pay.

Analysis: Wife's appeal regarding the child support rests on her assertion that she should not have had to pay support based upon fairness and the history of the case. Wife did not argue that the amount was wrongly calculated or inappropriate numbers were used in the calculation itself. Wife argued that she should not pay support because Husband failed to pay the $20,000 property settlement to her in a timely manner. The Appeals Court here finds Wife's argument lacking. The Court held that is was proper for the trial court to hear the contempt and the child support petition simultaneously, and that Husband's failure to pay the property settlement should not affect Wife's duty of support.

Regarding the issue of Husband's contempt, Wife argues additional punishment should have been handed down by the trial court in addition to requiring Husband to pay the outstanding amount in sixty (60) days. However, Wife's Petition only requested civil contempt, not criminal contempt. Civil contempt is intended to bring a party into compliance with a court order; criminal contempt is intended to punish a party for wrongdoing. Because Wife asked for civil contempt and received an order directing Husband to comply, no other action would have been proper. Therefore the trial court is affirmed.

Trial Courts Cannot Ignore Overpayment of Child Support

In the case of Huffman v. Huffman, No. M2012-01538-COA-R3-CV (Tenn. Ct. App. May 1, 2013), Knoxville divorce attorneys learn that although trial courts have broad discretion, they cannot simply refuse to allow a credit, judgment or repayment for overpayment of child support.

Facts: The parties divorced in 2002. In 2006, Father filed for a recalculation of child support. The trial court found an upward deviation and Father appealed. On appeal, the decision was vacated because the trial court failed to support its deviation from the Child Support Guidelines with specific findings and the issue was remanded. Upon remand in 2011, a hearing was held and the Court found that Father paid a total of $79,224 in child support since 2006, when he should have only paid $35,259, a difference of $43,965. But the trial court found Mother was entitled to a credit of $4,950, reducing father's overpayment to $35,259. However, the trial court found that "it was not economically viable to order Mother to repay this overage to Father" and refused to grant Father a judgment for his overpayment, stating that "neither party is to blame for the is simply a function of the judicial process." Father appealed.

Analysis: The Tennessee Court of Appeals looked at several prior cases on this issue, including: Guthrie v. Guthrie, No. W2012-00056-COA-R3-CV 2012 WL 5200079 (Tenn. Ct. App. Oct. 23, 2009) which affirmed a Father's judgment for overpayment of $6,4452,82 of child support; Stockman v. Stockman, No. M2009-00552-COA-R3-CV, 2010 WL 623724 (Tenn. Ct. App. Feb. 22, 2010), remanded to the trial court to determine the award for Father's overpayment; and Kopp v. Kopp, No. M2008-01146-COA-R3-CV, 2009 WL 2951172 (Tenn. Ct. App. Sept. 14, 2009), where the trial court gave Father a monthly credit on his child support obligation until the amount he overpaid was credited.

Based on this prior case law, the Appellate Court stated that no authority allows a trial court to forgive one party from reimbursing another for overpayment of child support simply based on that trial court's discretion, and that in this case, that decision resulted in an "injustice" to Father. Therefore, the decision that Father is not entitled to a judgment is reversed and remanded to the trial court, with instruction to give Mother a repayment plan so that Father can be reimbursed for his overpayment.

Legal Father May Terminate Child Support Obligation Via Negative DNA Results

April 24, 2013 by The McKellar Law Firm, PLLC

In the case Price v. Price, No. W2012-01501-COA-R3-CV, 2013 WL 1701814 (Tenn. Ct. App., Apr. 19, 2013) Tennessee family law attorneys learn that that a "legal father" (by virtue of being named on the birth of a child during a marriage), who are later proven not to be the father's biological child, has a right to terminate a child support obligation for that child.

The facts: Husband and Wife married in 1989. From 1992 to 2005 Husband was active duty in the Navy and was stationed away from his family with occasional visits home. From 1993 to 2003, while Husband was stationed away from Wife, she had a male roommate live in the marital home with her. During this period, Wife gave birth to two (2) children. In 2001 Husband had a DNA test performed on one of the children, who was shown not to be his biological child. Husband then filed a Complaint for Divorce, but did not follow through on it and remained married. In 2011, Husband again filed a Complaint for Divorce asserting that he was not the biological father of either child born of the marriage. Wife admitted that Husband was not the father, but argued that Husband executed a "voluntary acknowledgment of paternity" for each child shortly after their births. The court requested DNA testing which confirmed that Husband was not the father of either child. Wife's defense offered proof that Husband held the children out to be his own, listed the children as dependents in his military personnel file, and lived in the marital home with Wife and Children after being relieved of active duty status from the Navy in 2005. The trial court was not persuaded by Wife's arguments in relation to the DNA test results; therefore, it granted the divorce and stipulated that no children were born of the marriage. Wife appealed.

Analysis and Conclusions: On appeal, Wife asserted that "absent an adjudicative hearing naming another man as the biological father of the children, [Husband] is the children's legal father because he was married to the biological mother of the children, who were born during the marriage." Citing In re T.K.Y., 205 S.W.3d 343 (Tenn. 2006). Wife cited Tenn. Code Ann. § 36-1-102(28)(B) for the definition of "legal parent" to include "a man who is or has been married to the biological mother of the child if the child was born during the marriage," as well as Husband's "voluntary acknowledgment of paternity" ("VAP") for each child as reasons why he should be required to pay child support for the children.

The Court of Appeals found that here, no VAP was in the record provided by Wife. The only evidence that Wife provided included birth certificates for the children listing Husband as the father. Because there was no VAP, the Wife's argument was found meritless.

On the argument Wife raised using In re T.K.Y., the Court pointed out that the case was regarding two men seeking to establish parental rights to a child in regards to a termination of parental rights proceeding, and, therefore, was the opposite of the case at bar. The Supreme Court found this argument ineffective.

In regards to the definition of "legal parent" in Temm. Code Ann. §36-1-102(28)(B), the Appeals Court found that definition to be pertinent to adoptions and termination of parental rights proceedings only and therefore inappropriate to apply to the current case.

In its final opinion on the matter, the Court of Appeals stated that Wife's argument was "swimming against the tide." It further opined that Tennessee child support laws seek to obtain child support from biological fathers and seeks to relieve putative fathers from the burden of supporting children that are not biologically theirs. The Court affirmed the trial court's decision that Husband had no legal obligation to support the children in the matter since they were proven to not biologically be his.

Recent Case Shows How Negative Behaviors Can Impact Your Divorce

In this case titled Thomas v. Thomas, No. M2011-00906-COA-R3-CV (Tenn. Ct. App. March 6, 2013), the Court of Appeals found that the trial court did not err in their findings on the income used to set Wife's alimony and child support. Tennessee divorce attorneys learn that a spouse who is inconsistent about stating their income, fails to account for a dissipation of a child' college fund, and takes revengeful actions such as shutting off power and water to the marital home runs the risk of the divorce court deciding many aspects of the case in the other spouse's favor.

The facts of the case are as follows: Husband and Wife were married in April 1994 and had two children during the marriage. Wife filed for legal separation from Husband in June 2009; the couple attempted an unsuccessful reconciliation in October 2009; Wife moved to reinstate her legal separation petition in March 2010. Husband and Wife had several hearings regarding occupation of the marital home, payment of household bills, child support/alimony obligations, and visitation with the children. An order was entered by the court stating specific findings about Husband's truthfulness, the amounts he had paid or failed to pay (specifically regarding the mortgage), and ordered that Wife could remain in the marital home pending further court orders.

The final order for divorce entered by the trial court named Wife as primary residential parent and adopted Wife's Proposed Parenting Plan. "In part, the court based its custody decision on the limiting factors of neglect or substantial nonperformance of parenting responsibilities (Tenn. Code Ann. § 36-6-406(d)(5)). The court found Husband and Wife to be underemployed with Husband's income at $60,000 per year and Wife's at $24,000 per year. Husband was ordered to pay $862 per month in child support, $350 per month in alimony with this amount to increase to $550 per month to begin on April 1, 2012. Wife was also awarded alimony in solido by way of Husband's retirement account. Husband appealed the trial court's findings.

Analysis & Findings: Under Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(i), it is appropriate to impute income for the purpose of setting child support payments when "(1) a parent has been determined to be willfully and/or voluntarily underemployed or unemployed..." The determination of whether a party is willfully and voluntarily underemployed is a question of fact, and the trial court has considerable discretion in its determination. Taking into consideration the obliging parents educational level and/or previous work experience, determining whether he/she is willfully and voluntarily underemployed, the trial court must make a finding on their potential earnings. However, it is not presumed that the parent is willfully and voluntarily underemployed or unemployed, the burden lies on the party accusing such. Brewer v. Brewer, No. M2005-02844-COA-R3-CV, 2007 WL 3005346 at *8 (Tenn. Ct. App. 2007).

Wife entered income tax returns of Husband's with an income as low as $74,500 in 2005 to $131,097 in 2003. Husband did not submit any tax returns but testified that his income for 2010 was approximately $2,000 per month. To contest Husband's testimony, Wife produced a credit card application in which Husband reported he made $85,000 per year. After reviewing the record, the appellate court affirmed the trial court's finding of Husband's imputed income of $60,000 for purpose of setting child support and the amount awarded and alimony obligation.

Husband contended using his past behavior to determine the residential schedule and adopting Wife's proposed parenting plan was error by the trial court. The Wife's proposed parenting plan allowed him 85 days per year with his children. The factors in Tenn. Code Ann. § 36-6-404(b) must be considered when figuring the child's residential schedule and determining the primary residential parent. Tenn. Code Ann. 36-6-406(a) gives the court power to limit the child's time with the nonresidential parent "based upon a prior order or other reliable evidence that certain circumstances ... exist to justify imposing a limitation on parenting time." Jernigan v. Jernigan, No. M2011-01044-COA-R3-CV, 2012 WL 1357558, at *4 (Tenn. Ct. App. Apr. 16, 2012).

The trial court cited Husband's "abusive use of conflict" as a reason for limiting his parenting time. Examples of this behavior includes his posting intimate photos of Wife on the internet, his shutting off the electricity and power to the marital residence, and his liquidation of the children's college funds while the litigation was ongoing. The trial court also took into consideration a beer commercial he sent to his daughter and his continued self-absorbed acts. The appellate court reviewed the trial court's record and found no reason for the trial court not to adopt Wife's parenting plan. The decision was affirmed.

Husband argued that awarding Wife his retirement account was not an equitable distribution of marital property. The trial court awarded the account to Wife as alimony in solido. "A reviewing court will find an abuse of discretion only if the trial court 'applied incorrect legal standards, reached an illogical conclusion, based its decision on a clearly erroneous assessment of the evidence, or employ[ed] reasoning that causes an injustice to the complaining party.'" Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008).

In its determination of alimony in solido, the trial court considered Husband's inability to account for the children's college funds as its basis. The trial court also stated the alimony in solido was used as an alternative to awarding Wife accrued alimony and medical expenses owed by Husband. In reviewing the evidence, the appellate court found that the trial court did not abuse its discretion in awarding Wife alimony in solido by way of the retirement account and affirmed the decision.

Attempted Compliance Can Thwart Contempt Allegations

In the case of Gaddes v. Gaddes, No. M2011-02656-COA-R3-CV, 2013 WL 26842 (Tenn. Ct. App. Feb. 1, 2013) Tennessee divorce attorneys learn (1) criminal contempt is not warranted when attempted compliance is proven; and (2) parties cannot claim inconsistent positions about the intent of contractual language in order to avoid obligations.

Facts: The parties divorced in January 2001. In the Final Decree Mother was named the custodian from September through May, for which time period Father was to pay $1,622.00 per month in child support. From June through August, Father was named the children's custodian for which time period Mother was ordered to pay $290.00 per month in child support. After the Final Decree, Mother and Father verbally agreed to subtract Mother's child support obligation from Father's leaving Father to pay $1,174.00 per month in support over a twelve month period. The Final decree also stipulated that Father maintain health insurance for the two minor children and "the parties shall each pay one-half of any expenses not covered by insurance."

In December 2010 Mother filed a Petition for Criminal Contempt alleging Father was $2,059.00 in child support arrears, and that he had not yet paid the December payment. She also alleged that Father had not been paying in a timely manner and not paying his half of the out-of-pocket optical and/or dental expenses. Mother requested Father be incarcerated for ten days, become current on his child support, and that his visitation with the children be restricted pending mandatory counseling. Father filed a Counter Petition to Modify Final Decree and for Criminal Contempt requesting a reduction of his child support due to his decreased income and to hold Mother in contempt for interfering with his parenting time. The trial court held Father in contempt for his failure to pay the December 2010 child support payment before December 1st. However, the trial court declined Mother's request to incarcerate Father citing he was attempting to pay his child support obligation and prior to being served the Petition for Contempt he sent Mother a check for his December 2010 child support payment.

In August, 2011 a hearing was held on the competing motions. Mother was awarded $7,583.10 for unpaid child support through May 2011 to be paid at $500.00 per month and $1,200.00 for attorneys' fees. The trial court found Father was not obligated to pay half of any out-of-pocket optical and/or dental expenses for the children and reduced his child support obligation to $789.00 due by the 1st day of every month. Mother appealed.

Analysis: On appeal, the Appellate court decided two issues: (1) whether the trial court erred in declining to incarcerate Father for contempt; and (2) whether the trial court erred in not ordering Father to pay half of any out-of-pocket medical expenses.

On the contempt issue, Mother asserted a decade long issue with Father paying his child support obligation on time. The Appellate Court cited there was "scant evidence" to support Mother's allegations of decade-long non-compliance. The Court cited that Mother admitted to the trial court that her calculation of Father's arrearage was incorrect as she had failed to take into account two $600.00 payments made by Father. The Appellate Court pointed out that Father was $1,174.00 (one month) in arrears at the time Mother filed her Petition, and prior to being served Father paid the amount in full.

In regards to medical expenses, Mother argued that "medical expenses" referenced in the Final Decree should have been "reasonably interpreted" to include both optical and dental expenses. Mother contended that Father should be judicially estopped from claiming such expenses are not "medical expenses" due to Father's previous assertion in a contempt claim against Mother for her failure to pay a portion of non-covered medical and dental expenses. On appeal, Father asserted that "health insurance" did not cover optical and dental expenses. The Appellate Court cited Father's previous petition against Mother for dental expenses and ordered Father judicially estopped from claiming that the parties did not intend to split dental expenses, and found no reason to treat optical expenses differently from dental expenses. It also stated that both Mother and Father admitted that they had been splitting optical and dental expenses for "quite some time." The Appellate Court averred that when interpreting a contract, the parties' declarations and conduct are evidence to the interpretation of said contract.

Conclusion: The Appellate Court affirmed the trial court's ruling not to incarcerate Father. It reversed the trial court's ruling that Father did not have to pay half of optical and dental expenses and awarded Mother $2,889.70 for said expenses.

Retroactive Child Support Denied Due to Vehicle Payment by Spouse

February 14, 2013 by The McKellar Law Firm, PLLC

The case of Carroll v. Carroll No. M2012-00111-COA-R3-CV (Tenn. Ct. App. January 30, 2013), helps Tennessee Divorce Attorneys learn that retroactive child support may not be appropriate when a party has already overpaid support of a spouse in some other way.

The facts of the case are as follows: The parties married and had a child together before they separated in 2006. Husband filed for divorce in April 2007, and Wife did not answer the complaint until June 2010. She then filed an Answer and a Counter-complaint for divorce. A few months later she filed a motion seeking temporary support; Husband entered an agreed order to pay child support in the amount of $628 per month as per the Temporary Parenting Plan. From the time the parties separated in 2006 until August 2010, Husband was making payments of $667 per month for a Chrysler Pacific automobile that Wife drove. However, both were equally responsible for the payment. At an evidentiary hearing in October 2011, Husband alleged that Wife agreed to these payments on the vehicle in lieu of child support. Wife denied agreeing to these terms, but confessed that she did not stop him from paying. In addition, she stated she would have made the car payments herself with any child support given to her by Husband. In the Final Decree of Divorce the court did not find a reason to grant Wife retroactive child support, because it was not appropriate when Husband had been paying for a vehicle she was driving.

Analysis: Wife appealed the trial court's decision denying her request for retroactive child support. Under Tenn. Comp. R. & Reg. 1240-2-4-.06(1)(b)(1), "unless the rebuttable presumption provisions of section T.C.A. 36-5-101(e) have been established by clear and convincing evidence, a judgment for initial support must include an amount of monthly support dating back to when the parties separated." The evidence in this case shows that the Husband satisfied his obligations by paying the loan on the vehicle that the Wife drove. If the child support payments had been made to the Wife, they would have gone towards the same car payment. The payment for the vehicle was $667 per month. Husband was then obligated to pay $628 a month in child support. The payment on the vehicle exceeded the amount he was obligated to pay by $39; therefore, he ended up paying $2,106 more than he was required. The appellate court affirmed the trial court's decision in denying retroactive child support due to these circumstances.

Judicial Confirmation is Necessary for a Magistrate's Order to Become "Final"; Five Day Limit to Request Timely Hearing Before Judge on Disputed Dispositive Issues

December 24, 2012 by The McKellar Law Firm, PLLC

In Harris v. Harris, No. E2012-00300-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2012), Tennessee divorce attorneys learn how courts determine what is necessary for a Magistrate's order to be final and that parties have five days to request a rehearing before a judge on disputed dispositive issues.

The facts of the case are as follows: Father initially owed Mother $80 per week in child support ($110.54 per week after the court ordered that payments be raised). Mother and Father later attempted to terminate the parental rights of Father, after which Mother no longer received said child support from Father. Mother, seeking child support payments, then filed a Petition to Modify and for Civil Contempt; in his answer, Father claimed that Mother would not allow him to have a relationship with the child.

The Knox County Fourth Circuit Court Magistrate required Father to pay $758 per month in current child support, pay $1153.05 for health insurance premiums, and pay toward an arrearage of $41,273.63. The Magistrate, after a second hearing, found that Father should pay $968 per month in current child support, pay toward a $45,142.26 arrearage, and pay Mother's attorney fees. The Judge never entered an Order of Confirmation.

Father then succeeded in having venue transferred to the Trial Court of Sevier County from Knox County. Father then attempted to modify child support owed by claiming the following: the child support was calculated erroneously, no judge ever issued a confirmation order, Mother told Father that he no longer had parental rights, and that because child was a dependent on taxes, Father deserved a set off credit. The Trial Court found that it did not have appropriate jurisdiction and denied Father's motion.

On appeal, the Court decided the following issues: (1) whether the Trial Court erred in holding that it lacked jurisdiction to hear Father's petition and (2) whether Mother was entitled to appellate attorney's fees. In regard to the first issue, Tenn. Code Ann. § 36-5-405(g)-(i) provides that magistrates must submit written findings and recommendations and other case materials to the judge at the end of every hearing. While magistrates' findings on preliminary matters that are "not dispositive of the ultimate issue in the case" are "unreviewable" and thus "final," on other matters, parties can ask for a hearing before a judge up to five days after the hearing before the magistrate. Then, the Judge shall have discretion to order a rehearing if he/she sees it proper to do so. The magistrates' findings and recommendations will typically turn into the court's final decree if no party asks for a hearing before the judge. The judge should, however, confirm via judicial order the magistrates' findings and recommendations.

The Appellate Court discussed the case State Dept. of Children's Services v. S.A.M.H., 2005 WL 850356 (Tenn. Ct. App. April 13, 2005), in which the court held that "absent a final order of confirmation, the... Judge had the authority under Tenn. Code Ann. § 37-1-107(e)... to order a full evidentiary rehearing regardless of whether Mother had filed a timely appeal." The Court ruled that there was no finality since there was no judicial order of confirmation of the magistrate, and that in spite of Father's late-filed petition, the judge still had the authority to hold a hearing. Accordingly, the Court of Appeals vacated and remanded to the Trial Court, instructing the judge to confirm the magistrate's order if it decides not to hear Father's petition due to its delay. In regard to the second issue, the Court refused to award attorney's fees to Mother since Father won and his claims were meritorious.

When To Impute Income for Child Support; Preference for Rehabilitative Alimony in Tennessee Highlighted

August 12, 2012 by The McKellar Law Firm, PLLC

In the case of Velez v. Velez, No. M2011-0949-COA-R3-CV (Tenn. Ct. App. July 31, 2012), Tennessee divorce attorneys learn the manner in which appellate courts evaluate the adequacy of a parenting plan set by the trial court; that imputed income for an unemployed parent with a high school education and little work experience should be based upon minimum wage; and that Tennessee courts have a preference for rehabilitative alimony.

Facts: A divorce was filed after 12 ½ years of marriage. The parties had two minor children, with Mother requesting to be the primary residential parent (PRP). While Mother had been employed at minimum wage, she primarily stayed at home raising the children, and had a high school diploma. Father had been active duty US Navy, but suffered post-traumatic stress and was discharged. Father became employed as a civilian with relatively high pay.

At the hearing, Father confessed to adultery and testified he earned $70,000 per year base salary with the opportunity for bonuses. Mother alleged she had been the children's primary caregiver as well as offering testimony from relatives regarding Father's parenting ability and the parties' interactions with one another. Mother testified she had enrolled in college for occupational therapy, which would be expensive and would take 6-7 years to complete. The trial court granted Mother a divorce based on Father's inappropriate marital conduct. While Father had earned several bonuses, the court determined these were speculative and calculated his income at $7,433 per month; however, the trial court noted Mother was entitled to "immediate" information regarding Father's future bonuses. The trial court imputed a $1,642.00 per month ($8.00 per hour) income to Mother, in spite of her being unemployed. The trial court then provided Mother with lump sum alimony ($25,000), but denied her the greater amount of rehabilitative alimony she requested for school, and named her PRP.
The appeal addressed three issues: (1) whether the parenting plan was in the best interests of the children under Tenn. Code Ann. 36-6-106; (2) whether the court properly calculated child support and correctly imputed income to Mother; and (3) whether the alimony was appropriate in accordance with Tenn. Code Ann. 36-5-121.

First, the appellate court decided that the parenting plan was in the best interests of the children, holding that "trial courts have broad discretion to fashion parenting plans that best suit the unique circumstances of each case" and that the appellate courts are not to "tweak" such plans unless they appear to be entirely unreasonable because trial courts are in the position to determine credibility.

Second, the appellate court found that trial courts are granted "broad discretion" to assess child support in accordance with the Child Support Guidelines and that Father's bonuses were "too speculative for inclusion as income." However, the appellate court reversed the trial court's decision regarding Mother's imputed income, stating that it should be based upon the federal minimum wage ($7.25 per hour) and that after Mother is employed, the Child Support Guidelines warrant a child support award for resulting work-related daycare expenses.

Third, the court ruled on Mother's request for rehabilitative alimony. While trial courts have discretion in deciding the appropriate type of alimony, the appellate court noted a "strong preference for short-term spousal support", particularly rehabilitative alimony. The appellate court stated that one spouse's ability to pay and the other spouse's need are the most essential considerations in determining alimony awards and listed the factors provided in Tenn. Code Ann. §36-5-121, including: relative education and training of each party; length of the marriage; separate assets of each party; marital property allocations; relative earning capacity of each party; standard of living to which the parties are accustomed; age, mental condition, and physical condition of each party; relative fault of the parties; and tangible and intangible contributions of each party to the marriage. Here, Father's income was (minimum) $70,000 per year; however, since Mother had contributed to the marriage by staying home with the children, she had little work experience (earning minimum wage) and a high school education that would provide her with income of only $15,080 per year. Since Mother was "significantly" economically disadvantaged in comparison to Father, the appellate court held that the trial court did not appropriately apply the statutory factors and that Mother was entitled to rehabilitative alimony "either in addition to or instead of" the lump sum alimony originally granted. Accordingly, this issue was remanded to the trial court to determine the appropriate amount of rehabilitative alimony for Wife.

Imputation of Income to Determine Child Support in Tennessee Requires Specific Finding

Goodman v. Goodman, No. W2011-07971-COA-R3-CV (Tenn. Ct. App. May 7, 2012), shows Tennessee Divorce attorneys that without a specific finding of fact regarding willful under-or-un-employment, imputation of income to determine child support is not appropriate.

The parties had four children during their 15 year marriage. As part of the divorce process that began in 2008, the parties entered a consent order on temporary support based on Father's projected income. Later in 2008, Father was fired and returned to a previous employer at reduced pay, impairing his ability to pay child support. Mother filed three scire facieses between 2008 and 2010, resulting in an arrearage award and attorney's fees. Subsequently, Father was imprisoned for nonpayment and as a result was terminated by his employer. In order to maintain insurance on his children, Father took a position at a coffee shop resulting in a significant reduction in pay. Father asserted he was unable to make child support payments and in 2011 a trial was held to deal with the issue. Father testified about his income and submitted his 2008-2010 tax returns. The trial court found that Father's earning capacity was 50k and awarded arrearages based upon that figure as well as attorney's fees.

The appeal addressed three primary issues: whether trial court (1) erred in finding the Father's earning capacity at 50k; (2) erred in awarding Mother arrearages based on 50k; and (3) erred in awarding attorney's fees.

At the time of trial, Father was earning $19,000 per year and could potentially make $42,000 if he was promoted to manager. However, the trial court set his income at $50,000, an imputed amount. Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)(2)(i) provides that imputation of income is appropriate if a court has found specifically that the obligor is voluntarily unemployed or underemployed. In this case, the trial curt's final order made no finding that the Father was either unemployed or voluntarily underemployed. Although Mother argues this finding may be implied from the final order, the Appellate Court determined that the trial court made no finding that Father's choice to leave his former industry of real estate and work at Starbucks was voluntary or reasonable. Accordingly, without such a finding, no imputation of income may be made. Therefore, the issue was remanded to the trial court to calculate child support based on Father's actual earned income and not a projected amount.

Regarding the appeal of the arrearage finding, the Court of Appeals held that because Father had failed to properly file the record of proceeding that occurred during the Referee's determination of such arrearage, the issue could not be addressed on appeal. When no record of the lower court's proceedings are present, the trial court's decision must be affirmed. Therefore, the arrearage determination of $32,225.00 stands. On the issue of Mother's award of attorneys fees, T.C.A. §36-5-103(c) allows a court to award fees in support and custody cases. Here, because the trial court's judgment of current support to by paid by Father was reversed, the award of fees to Mother is vacated and remanded to be re-determined along with the new support amount by the trial court.

Child Support Stops Accruing in Tennessee When Parties Resume Living Together

The Tennessee Court of Appeals recently held that retroactive child would not be granted during periods when former spouses resumed living together after a divorce. Tennessee divorce attorneys may use this case to argue that child support stops accruing when parties are physically living together even if legally separated or divorced.

In Estes v. Estes, No. M2010-01243-COA-R3-CV (Tenn. Ct. App. Apr. 16, 2012), the parties were married for six years with two children. Wife was given custody of the children and the Husband was ordered to make child support payments. The Wife and children eventually moved back in with Husband. During the four years that they lived together, Husband and Wife opened a joint checking account together. Even though the Wife eventually opened her own account while they were still living together, she still had full access to the joint account. During this time a third child was also born.

In 2006 the parties permanently separated. Wife sought to have Husband pay retroactive child support for all three children and have him pay for the children's medical expenses during the four years they resumed living together post-divorce. The Husband objected to these claims, arguing that during the time that they lived together Wife had full access to their joint checking account. The trial court disagreed, holding that Husband had to pay $32,886 in retroactive child support for the two original children. But because the court refused to have Husband pay for Wife's attorneys fees as well retroactive child support for their third child, Wife appealed to the Tennessee Court of Appeals.

The Tennessee Court of Appeals held that Husband had satisfied the child support order during the period of physical reconciliation, June 2002 through August 2006, and to award Mother child support during those months was in error. This was because during the years that they lived together, Wife had full access to the joint bank account where Husband deposited all of his earnings. Looking to T.C.A. § 36-5-101(f)(1)(2010), the Appellate Court concluded that the purpose of child support is to fulfill the non-custodial parent's obligation to contribute to the child's support. Because the Wife had full access to that account, the Husband met his child support obligation from 2002 through 2006. And while the Wife paid for the children's insurance while they lived together, the Court concluded that she could have easily written herself a check from the joint account to pay for the insurance premiums that were taken out of her paycheck.

In reversing the trial court's order to have the Husband pay retroactive child support for the third child, the court looked to T.C.A. § 36-2-311(a)(11)(A). Because there was no evidence showing that the Husband did not provide for the third child while they were living together, the Appellate Court affirmed the trial court's decision in this matter. As the Appellate Court stated, "The statute and child support guidelines addressing retroactive child support apply in situations where the Father has not provided support for the child, which [was] not the case" here.

Tennessee Courts Authorized to Order Child Support Prior to Final Divorce

March 26, 2012 by The McKellar Law Firm, PLLC

The State of Tennessee Attorney General recently issued Opinion No. 12-42 entitled "Authority to Award Child Support in the Absence of a Divorce or Separation Decree" on March 21, 2012.

The opinion states that Tennessee courts do have the authority to obligate parents to pay child support prior to the finality of a divorce or separation, and several statutory references are cited. This is an issue that many Tennessee divorce attorneys should be aware of, because many times child support is litigated prior to a trial and can affect the amount of alimony awarded, if any.

The Opinion explains that the reasoning behind the ability to order support prior to parties becoming divorced is supported numerous times in the Tennessee statute. First, T.C.A. 36-5-101(a)(2) does allow courts with subject matter jurisdiction over domestic relations matters to order a future child support obligation. Further, T.C.A. §37-1-104(d)(2) also allows issuance of child support orders upon request of one or both of the parties. That means that all circuit, chancery and juvenile courts may grant a child support order, whether the parties are still married or not. Further, such courts may grant such an order prior to either party having field a divorce or legal separation complaint, so long as they are physically separated.

Juvenile courts in Tennessee also have the authority to order ongoing child support when a finding has been made of dependence, neglect, unruliness or delinquency under T.C.A. §37-1-151(a). Also, juvenile courts and general sessions courts that are authorized to hear paternity actions may also order child support, but only when a genetic testing has been completed or paternity has been confirmed via consent order. Further, under T.C.A. 36-2-311(a)(11)(A), entitled "Order of Parentage", requires the court entering such an order to calculate both current support and an arrearage. Accordingly, there is seemingly no objection that can be lodged against such an order. However, parents may always dispute the amount of child support or asking for a modification if either parties' income changes after the initial hearing.

Burden of Proving Wilfull Unemployment Falls on Party Making Such Claim

December 26, 2011 by The McKellar Law Firm, PLLC

In the case of In Re: Hannah M.N., No. E2010-00342-COA-R3-JV (Tenn. Ct. App. Dec. 2, 2011), the Magistrate for the Juvenile Court of Blount County, Tennessee, held that the child's father was willfully and voluntarily unemployed. Accordingly, the court imputed income to him in order to calculate his child support obligation. The Appellate Court vacated this decision and remanded for further adjudication, showing Tennessee family lawyers how the new standard for this determination works.

This case began by the State filing a petition to set child support on behalf of the Mother in 2008. At a hearing, Father stated he was unemployed but received money from his mother and sister. He also stated in 2007, he made $7.00 per hour and worked forty hours per week and in that in November of 2008 he earned $300 per week at a lawn care service. His testimony regarding employment in previous years included the following: he owned and sold a restaurant in 2005, earning between $8,000 and $10,000 in proceeds; and he worked as a casino manager earning $30.00 per hour. Father had no proof of income for the magistrate at the hearing, even though instructed to do so via the summons served upon him. However, Father did testify that he currently owned a private club where people played cards.

The magistrate imputed income to him of $50,000 per year and to Mother approximately $12,000 per year. Father hired counsel and filed a Tennessee Rules of Juvenile Procedure Rule 34(b) motion asking the court to vacate or modify his obligation, set at $627 per month. The magistrate refused to hear this, stating Father lacked credibility on the issue of how much income he earned from his private club. However, the magistrate did hear Mother's contempt petition against Father, and in his defense he testified that he made $320 per week at the club and his 2008 tax return showed $8,327 in gross income. He was found in contempt and ordered to pay a purge amount of $2,772. Father appealed to the Juvenile Court Judge, who found he had waived his right to a de novo hearing by previously filing his motion to modify or vacate and his appeal was dismissed. Father then appealed to the Court of Appeals.

The Appeals Court pointed out that willful unemployment is a question of fact and the court must consider education, training, ability to work, past and present employment, reasonableness of present job choice and good faith. Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)(2.(iii). The Court stated that Father's lack of proof of income at the first hearing did not give magistrate grounds to impute income. Instead, the party alleging that the other parent is willfully or voluntarily underemployed or unemployed bears the burden of proof. Tenn. Comp. R. & Regs. 1240-2-4.04(3)(a)(2)(ii). Accordingly, the State (acting on behalf of the Mother) had to demonstrate the Father's willful under-or-un-employment. Therefore, the Appeals Court held that the record did not support such a finding against Father for imputed income of $50,000 per year. Therefore, the case is remanded to the Juvenile Court to determine his actual income. The judgment was vacated and the appeal costs were taxed to the State (ex rel. the Mother).

Child Support Calculation Must Include Overtime Pay in Tennessee

September 4, 2011 by The McKellar Law Firm, PLLC

In Widener v. Widener, No. M2010-02435-COA-R3-CV, 2011 WL 3566991 (Tenn. Ct. App. June 28, 2011), the Tennessee Court of Appeals reversed a trial court's order when it did not include a spouse's overtime pay and assigned the wife a majority of a car debt when the car actually belonged to the aunt of the husband.

John Widener ("Husband") and Stephanie Widener ("Wife") divorced. During the divorce proceeding, the trial court named Husband as the primary residential parent, and did not include Husband's overtime pay as part of the child support calculation since Husband was not receiving it at the time of the hearing. The court also ruled that Husband only owed $1,000 of the amount owed for a car that Wife used during the marriage when she worked. Wife then appealed the trial court's decision.
The Tennessee Court of Appeals affirmed on one issue, and reversed and remanded on the others. While Wife claimed that Husband was abusive to both her and the children, the appellate court noted that there was domestic abuse committed by both parties, and that Husband was a credible witness regarding his ability to care for his children. Therefore, the appellate court did not find that the evidence preponderated against the trial court's findings regarding custody.

The court came to a different conclusion, though, regarding the trial court leaving out Husband's income derived from overtime. A parent's income is a question of fact, and overtime pay is to be included in the calculations of a parent's income. The trial court did not include Husband's overtime pay because he was not paid for 2 weeks before the hearing. Yet, Husband testified that his overtime income would start back up since it always went "up and down." The appellate court vacated the trial court's ruling and remanded it back to the trial court to recalculate the child support.

Lastly, the appellate court found that making Husband only pay $1,000 towards the car was unsupported by the record during trial. Wife did not have possession of the vehicle after they separated, but it was actually purchased by Husband's aunt. Wife also never acted as surety for the debt when the vehicle was purchased.