Posted by: koherston | April 14, 2011

Modification of Agreed Child Support in Tennessee: Henderson v. Wilson

Facts: Mother and Father married in 1990, had two children, and divorced in 1992. Father was awarded custody and Mother was ordered to pay $50 per week for child support. Mother paid a total of $700, all of which was paid in 2000. Father filed a petition in 2000 to increase Mother’s child support, which petition was denied by the trial court. In response, Father turned over custody of the children to Mother, and they have remained in her custody since that time. In 2006, Mother filed a petition for child support alleging that although Father had legal custody, both children had actually been under her exclusive care and control for the past six years. The parties, both represented by lawyers, entered an agreed order whereby Father would pay Mother $35,000 at the rate of $400 per month for a child support arrearage. Two years later, Father sought to modify that agreed order on the grounds that it was an impermissible retroactive modification of child support. The trial court denied Father’s motion. Father appealed.

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

The Court began by noting Father was attempting to back out of the settlement he agreed to. That’s very tough to do because consent decrees, compromise and settlement agreements, and agreed orders are favored by the courts and represent the achievement of an amicable result to pending litigation. A consent decree signed by the parties involved has been described as “about the most binding of agreements that can be made.”

Tennessee Rule of Civil Procedure 60.02 sets out a list of possible grounds that might justify relief from a final judgment. These are:

(1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time . . . .

In other words, in order to set aside or alter an agreed order, a party must typically show the agreement was entered through fraud or mistake. In the absence of fraud or mistake, an agreed order will stand as made unless it is vacated in the same manner as it was procured, i.e., by agreement.

First, Father argues the trial court should have granted his Rule 60.02(3) motion because the Agreed Order “was void as against public policy in that it impermissibly awarded retroactive child support.” While it is true that certain types of child support agreements have been declared void as against public policy, those cases involved agreements to relieve a natural or adoptive parent of his or her obligation to provide child support, agreements that the Child Support Guidelines would not apply, and the like.

After reviewing several cases in which a party tried to get a “do-over” of an agreed resolution of a child support dispute, the Court notes two principles common to those cases. First, when the action is not a direct appeal of a parenting plan or agreed order setting support, the threshold for setting it aside on the ground it is void or voidable is very high. Second, agreements incorporated into decrees that purport to relieve a parent of his or her child support obligation are void as against public policy, as are agreements not to seek future increases in child support. The Court concluded:

We can find no authority, nor has Father provided any, that would justify granting a Rule 60.02 motion to set aside an agreed order regarding child support because a parent agreed to pay more than he or she was required to pay. We cannot conclude that a parent’s choice to pay more than the minimum required by law is against the public policy of this state. Thus, assuming arguendo that Father’s contentions that the Agreed Order was based on amounts of child support that were greater than the amount he would have been obligated to pay are correct, he is still not entitled to Rule 60.02 relief on the basis that he agreed to, and the court approved, a settlement that was not based strictly on the guidelines.

Father also argues that the $35,000 he obligated himself to pay under the Agreed Order should be offset by Mother’s failure to pay child support to him under the final judgment of divorce entered in 1992, which obligation, he asserts, continued to be in effect until modified by the Agreed Order. According to Father, setting off Mother’s unpaid child support against the $35,000 he agreed to pay in would totally wipe out his obligation. In making this argument, Father relies on Rule 60.02(4) which provides for relief on the ground that “the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated.” For the rule to apply, Father would have to show that he has satisfied the $35,000 judgment arising from the Agreed Order.

As part of Mother’s 2006 petition to set child support, the parties litigated for a year and then reached an agreement, including the agreement that Father owed $35,000 in past child support for the time the children were in Mother’s custody. He agreed to pay that amount and to a judgment against him in that amount in settlement of the pending litigation. The Court stated:

While Father could have raised the outstanding child support order requiring Mother to pay him support as a defense to Mother’s petition of July 5, 2006 to set child support, and while he could have made the setoff argument at that time, he chose not to do so. . . . Clearly, Father’s claim that Mother owed him past due child support should have been raised, if at all, before the Agreed Order was entered into. . . . Father cannot claim that he was unaware of the existing child support order at the time he entered into the Agreed Order. Neither can he now avoid the enforcement of the Agreed Order that he entered into that settled Mother’s claim against him. . . .

Rule 60.02 is not a substitute for appeal, and motions made pursuant to that rule are generally denied when they are made to avoid a party’s decision to settle the litigation. That is exactly the situation here. Father gave his assent to the Agreed Order with full knowledge of all the relevant facts. He has failed to demonstrate that he is entitled to relief from that Agreed Order under Tenn. R. Civ. P. 60.02.

Since Father is not entitled to relief under either of his theories, we affirm the trial court.

This holding is consistent with a longstanding equitable maxim: volenti non fit injuria (he who consents to what is done cannot complain of it).

Henderson v. Wilson (Tennessee Court of Appeals, Middle Section, February 25, 2011).

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


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