Facts: Just days before the parents were divorced in 2001, Mother was arrested for solicitation to commit first degree murder after she allegedly attempted to hire someone to poison Father. In 2003, Mother was convicted and sent to prison for 8.5 years. After Mother’s release from prison, she filed raised numerous post-divorce issues. The only issue of interest to me is her claim that the trial court erred in assessing statutory interest on Mother’s child support arrearage. In August 2004, the trial court ordered Mother to pay child support. Mother filed a timely Motion to Alter or Amend, which motion was not addressed by the trial court until September 2009, after Mother was released from prison. The trial court determined that Mother owed $22,400 in child support arrearages plus interest in the amount of $10,392, for a total child support arrearage of $32,792. Mother appealed the assessment of interest on her arrearage.
On Appeal: The Court of Appeals, in a 2-1 decision, reversed the trial court.
If the full amount of child support is not paid by the date when the ordered support is due, the unpaid amount is in arrears, shall become a judgment for the unpaid amounts, and shall accrue interest from the date of the arrearage, at the rate of twelve percent (12%) per year. All interest that accumulates on arrearages shall be considered child support.
The Court begins its analysis by noting both parents filed motions to alter or amend the trial court’s August 2004 Order.
During the pendency of a motion to alter or amend, a judgment is suspended. Any order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before entry of a final judgment adjudicating all the claims, rights, and liabilities of the parties.
The Court references the analysis of a similar procedural question in the context of alimony in the recent decision on Forgey-Lewis v. Lewis (click here for my blog post on that case). In that case, Wife garnished funds from Husband’s bank account to satisfy an alimony award that had not become a final, non-appealable judgment because there was a pending motion to alter or amend. The Court in Forgey-Lewis ruled the garnishment was improper because the judgment was not a final order.
Thus, in Forgey-Lewis, the wife could not take action to enforce the alimony obligation while the motion to alter or amend was pending. We believe that the Court’s reasoning would apply to orders containing other obligations as well, such as child support, or the division of marital property. . . .
[W]e conclude that Mother did not fail to pay child support “by the date when the ordered support [was] due” because the order requiring her to pay such support was not final or enforceable until the motions to alter or amend were resolved in 2009. Therefore, we agree with Mother’s assertion that it was improper for the trial court to assess statutory interest on the award of child support for that period of time, and we vacate the $10,392 award of interest.
Dissenting Opinion. Judge Kirby dissented from the majority opinion regarding the assessment of statutory interest on Mother’s child support arrearage.
Under the plain language of the child support statutes, each month’s child support obligation, if not paid on the date ordered, immediately becomes a judgment, by operation of law. Interpreting T.C.A. § 36-5-101(f)(1), then numbered as Section 36-5-1-101(a)(5), this Court in Summers v. Summers stated: “Thus, when support is not paid by the date it is due, it is automatically converted into a judgment for such arrearage by operation of law. . . . Each month that support was not paid by the father of the children, the amount of arrears became an enforceable judgment.” Summers v. Summers, No. 02A01-9709-CH-00230, 1998 WL 713296, at *10-11 (Tenn. Ct. App. Oct. 14, 1998) (Highers, J.) It becomes a judgment at that point even if the amount of the obligation is subject to later revision, as through a motion to alter or amend or by an appellate court. This is made clear by the definitions in the Child Support Guidelines. The Guidelines state:
T.C.A. § 36-5-101(f)(1) defines “in arrears” as the circumstances existing when the full amount of child support is not paid by the date upon which the ordered support is due. The unpaid amount at that time is “in arrears and shall become a judgment for the unpaid amounts.[“]
TENN. COMP. R. & REGS. 1240-02-05-.02(2)(a). The Guidelines go on to define the terms “child support” and “support” as “a judgment, decree, or order, whether temporary, final or subject to modification issued by a court of competent jurisdiction . . . for the support and maintenance of a child, . . . and which may include related . . . interest. . . .” TENN. COMP. R. & REGS. 1240-02-05-.02(3) (emphasis added). Thus, the Guidelines make it clear that, under T.C.A. § 36-5-101(f)(1), even if a child support order is not final and is subject to modification, interest begins to accrue on the date each month that the support is not paid. . . .
Section 47-14-122 states expressly that interest on an ordinary judgment is unaffected by post-trial motions, and begins to accrue upon entry of the verdict or judgment. Under the majority’s holding, interest on a child support arrearage would begin accruing later than interest on any other judgment. Moreover, under the majority’s holding, an obligor parent can suspend the running of interest merely by filing frivolous post-trial motions. . . .
Under T.C.A. § 36-5-101(f)(1), if child support is not paid “by the date upon which the ordered support is due, the unpaid is in arrears.” It goes on to state that interest “shall” accrue “from the date of the arrearage.” Thus, affirming the amount of the arrearage found by the trial court recognizes that the child support was due each month from July 2003 forward. But in vacating the award of interest, the majority states that the child support was not “due” until resolution of the motion to alter or amend. Therefore, the majority opinion is internally inconsistent. . . .
Does the majority holding mean that a trial court cannot take measures to compel an obligor parent to pay pendente lite child support, such as holding the obligor parent in contempt, until final judgment is entered and post-trial motions are resolved?
I have to side with Judge Kirby on this one. If the case makes it to the Tennessee Supreme Court, I suspect they will agree with her, too.
Information provided by K.O. Herston, Tennessee Divorce Lawyer.