Facts: The parties were divorced in 1995. In 2001, Wife filed a petition to modify Husband’s child support obligation on the grounds of Husband’s increased income. After numerous hearings before different judicial officers (Special Masters, Judge) resulting in numerous interim findings, a final order was entered in 2009. The Child Support Guidelines are amended from time to time. In this case, the Court applied the 2006 version of the Guidelines going back to 2001. The question presented was whether amended versions of the Guidelines apply to petitions to modify child support made before the amendments were adopted. The trial court said yes and ruled that Husband had actually overpaid his obligation by nearly $25,000 and was entitled to be repaid by Wife.

The Court of Appeals agreed on the legal question, holding that “the Guidelines as amended in 2006 apply to petitions to modify support filed before the amendment, in those cases where the hearing on the petition is held after the effective date of the amendment.”

Wife argued, however, that application of the amended Guidelines triggered the “hardship” provision, which the Court summarized as follows:

In contemplation that the application of the Income Shares formula could significantly affect the amount of child support, the amendment carried an escape clause to soften the blow to the custodial parent. The 2006 provision states:

(h) Hardship Provisions Due to Modification of Order. Any time following the effective date of these Rules when a tribunal is considering modification of an order initially established under Tennessee’s Flat Percentage Guidelines, and the tribunal finds a significant variance between the amount of the existing child support order and the amount of the proposed child support order calculated under this chapter, which change results from the application of the guidelines rather than from the change in the income and/or circumstances of the parties, then the tribunal may modify the current child support order up to the full amount of the variance or may apply a hardship deviation as described below in parts 2-4.

Based on the specific facts of the case (which are mind-numbingly detailed such that they will not be repeated here; read the opinion if you want to know), the Court found “the hardship provision appears to be tailor made to the present situation.” The Court remanded the calculation to the trial court with these instructions:

We also believe, and so hold, that the modification should be at least 50% of the difference between what Husband was ordered to pay under the straight percentage rate and what he was ordered to pay under Income Shares. There is no magic formula by which we have reached the percentage of 50%. It is simply the minimum amount that we believe will be necessary to alleviate the hardship on Wife based on the amount of the change and the time for which it retroactively took away support that Wife received and ostensibly spent on her children. We will leave it to the trial court on remand to determine the exact percentage rate for the time periods identified by the trial court in his last order up to January 1, 2008, so long as it is at least 50%.

Counsel should be aware of the hardship provision and its potential applicability to retroactive modifications of child support using Guideline formulas changed after the fact.

Hall v. Hall (Tennessee Court of Appeals, Oct. 5, 2010).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.