Posted by: K.O. Herston | January 7, 2013

Retroactive Child Support Modification Reversed in Tennessee: In re Christopher A.D.

Knoxville divorce attorneyFacts: Father and Mother are the never-married parents of Child. Later, Father married Wife. Even later, Mother and Father went back to court to consider modifying Father’s child support obligation. Father falsely testified his business sustained a net loss at the end of the year, and swore his income was only $250 per week. The amount of Father’s child support obligation was set based on his false testimony.

Fast forward a few years and Father and Wife divorce. Wife contacted Mother and told her Father had committed perjury at the child support hearing years earlier by under-reporting his actual income, and she alerted Mother to the existence of Father’s Answer in the divorce action and other relevant public documents.

This led Mother to file a petition for contempt and to modify child support. Mother alleged Father had fraudulently understated his income in the earlier proceeding and failed to disclose his assets in order to avoid paying additional child support, and she asked the court to order Husband to pay her child support “retroactively to the date of the last hearing [years earlier].”

At the trial, Mother introduced evidence showing that Father’s bank account records conflicted with his previous income tax return. Asked to explain the difference, Father said, “I don’t know. My tax lady done this. I don’t know.”

The trial court explicitly stated that Father was not a credible witness and his testimony was not to be believed. On the basis of the evidence in the record of Father’s earning capacity, the trial court imputed income of $50,000 to him years earlier and ordered him to pay retroactive child support in accordance with the Child Support Guidelines. The court calculated what Father should have paid under the Guidelines, subtracted the amount he actually had paid, and ordered him to pay the difference, amounting to $26,526.30 for back child support and statutory interest, as well as $12,982 for attorney’s fees and expenses. Father appealed.

On Appeal: The Court of Appeals reversed the trial court.

Tennessee Code Annotated § 36-5-101(f)(1) provides:

Any order for child support shall be a judgment entitled to be enforced as any other judgment of a court of this state and shall be entitled to full faith and credit in this state and in any other state. Such judgment shall not be subject to modification as to any time period or any amounts due prior to the date that an action for modification is filed and notice of the action has been mailed to the last known address of the opposing parties….

Thus, Tennessee Code Annotated § 36-5-101(f)(1) and its application by the courts prohibit retroactive modification of a child support order prior to the filing of a petition to modify. The Tennessee Supreme Court has held that a child support order is not subject to challenge based on equitable defenses such as fraud. Here, the trial court modified Father’s child support back to the time of the prior child support order. The question, then, is whether an exception exists for misrepresentation of income.

In Hodge v. Craig, the Tennessee Supreme Court recently made clear that the fact that damages awarded for misrepresentation of parentage, i.e., the pecuniary loss caused by the misrepresentation, are measured or calculated by child support previously paid does not convert that award into a retroactive modification of support.

After analyzing the opinion in Hodge, the Court reasoned:

The case before us . . . alleges a misrepresentation of income by Father in a hearing regarding the appropriate amount of child support. We cannot conclude that the holding of Hodge recognizing a claim of intentional misrepresentation of parentage can be read to imply that a court has the authority to retroactively modify a child support order. Neither does its holding that an award of damages for such misrepresentation is not a retroactive modification of child support affect the prohibition of retroactive modification.

The Court reversed the trial court’s retroactive modification but awarded a prospective modification of Father’s child support obligation back to the date Mother’s petition was filed.

In re Christopher A.D. (Tennessee Court of Appeals, Middle Section, November 20, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.


Responses

  1. What is a prospective modification of child support obligation?

    • The Court of Appeals modified the ongoing support obligation from the date of Mother’s petition instead of the trial court’s decision to extend the modification further back in time to a point before Mother’s petition was filed.

      • So while the trial court was justified to re-visit the case based on her petition they were not in compliance with TCA in ordering any retroactive awards prior to the date of her filing the petition.


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