Modifying a Deviation from the Child Support Guidelines in Tennessee: Pennington v. Hennessee

Facts: Mother and Father are the never-married parents of Child. They agreed on a parenting plan that provided for equal co-parenting time. The agreed parenting plan further stated that “neither party shall be obligated to pay child support” except Father’s agreement to pay all school expenses, daycare costs when Child is with him, health and dental insurance, half of uncovered medical expenses, and all college expenses. The parties failed to state the amount of child support that would have been owed under the Child Support Guidelines been followed and failed to explain why deviation from the Guidelines was appropriate. Years later, Mother filed a Petition to Modify Child Support. After a hearing, the trial court found there was no “significant variance” required to modify child support. Mother appealed.

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

An agreement by the parties that no child support will be paid is generally void as being against public policy. Trial courts are to be “vigilant gate-keepers” to assure compliance with the Tennessee Child Support Guidelines.

The Court began by distinguishing this case from previous cases in which parties agreed no child support would be owed and that agreement was later declared by a court to be void. In this case, Father had a support obligation, namely payment of all school expenses, daycare costs when Child is with him, health and dental insurance, half of uncovered medical expenses, and all college expenses. There was also no evidence the parties agreed not to seek support in the future should there be a material change in circumstances.

The Court noted previous opinions holding that a trial court’s failure to make written findings for deviating from the Child Support Guidelines when approving a settlement “is a mere failure of procedural fidelity, at most an erroneous ruling,” which does not justify setting aside a final order after the time for direct appeal has passed or operate to void a final order.

Based on the foregoing, the Court concluded the previous child support order was not void or voidable. It also agreed with the trial court that a significant variance did not exist. So why was the trial court reversed?

Because the failure to make the required findings made the child support order deficient and, therefore, in need of modification whether or not there was a significant variance. Tennessee’s Child Support Guidelines have the force of law. Any deviation from the Guidelines must be explicitly stated by the trial court. See Tennessee Code Annotated § 36-5-101(e)(1). If the Guidelines are not followed, the trial court must make specific written findings that their application would be unjust or inappropriate, stating the amount that should be awarded under the Guidelines, along with justification for the deviation. See Tennessee Comp. R. & Regs. Ch. 1240-2-4-.02(7).

In the absence of those mandatory findings, the Court concluded:

[W]e must reverse the judgment and remand the case for further proceedings. The 2005 order is deficient because it substantially and materially fails to comply with Tenn. Code Ann. § 36-5-1-1(e)(1)(A) and Tenn. Comp. R. & Regs. Ch. 1240-2-4-.02(7), which require courts to “make a written finding that the application of the child support guidelines would be unjust or inappropriate in that particular case, in order to provide for the best interest of the child(ren) or the equity between the parties.”

The case was remanded to the trial court to set child support.

Pennington v. Hennessee (Tennessee Court of Appeals, Middle Section, June 8, 2011).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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