Retroactive Child Support in Tennessee When Parent Did Not Know of Child’s Existence: Burnine v. Dauterive

Facts: Mother, who lived in Tennessee, and Father, who lived in Louisiana, had a brief relationship that resulted in the birth of Child. When Child was an infant, Mother lied and told Father Child had died. Mother said she lied because she was upset with Father, explaining, “I basically wanted a relationship with him, and he didn’t want that.” Subsequently, custody of Child was transferred back and forth numerous times between Mother and the maternal grandmother because of Mother’s drug abuse issues. Father’s paternity was established when Child was thirteen, and after establishing a relationship with Child, Father sought to be named primary residential parent. The maternal grandmother then petitioned for retroactive child support. Father was named primary residential parent, but the trial court ordered Father to pay approximately $40,000 in retroactive child support to the maternal grandmother. Father appealed.

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

In Tennessee, it is a well-settled principle that biological parents must, as a general rule, support their children until they reach the age of majority. A parent’s obligation to support exists regardless of whether there is a court order and regardless of whether the parents were ever married. When paternity of a child born out of wedlock is established, the trial court is required to address not only the child’s need for future support, but also the father’s obligation to pay past support.

The Child Support Guidelines provide a presumption that child support will be awarded retroactively to the date of the child’s birth in paternity cases. However, the Tennessee legislature has recognized that under certain circumstances it would be inequitable to order a father to pay child support retroactive to the child’s birth. Accordingly, Tennessee Code Annotated § 36-2-311(a)(11)(A) provides, in relevant part, that when making an award of retroactive child support,

. . . the court shall consider the following factors as a basis for deviation from the presumption in the child support guidelines that child and medical support for the benefit of the child shall be awarded retroactively to the date of the child’s birth:

(i) The extent to which the father did not know, and could not have known, of the existence of the child, the birth of the child, his possible parentage of the child or the location of the child;

(ii) The extent to which the mother intentionally, and without good cause, failed or refused to notify the father of the existence of the child, the birth of the child, the father’s possible parentage of the child or the location of the child; and

(iii) The attempts, if any, by the child’s mother or caretaker to notify the father of the mother’s pregnancy, or the existence of the child, the father’s possible parentage or the location of the child[.]

In addition, Tennessee Code Annotated § 36-5-101(e)(1)(A) says the court may consider “the equity between the parties” when considering the issue of retroactive child support. “In cases in which the presumption of the application of the guidelines is rebutted by clear and convincing evidence, the court shall deviate from the child support guidelines to reduce, in whole or in part, any retroactive support.” Tennessee Code Annotated § 36-2-311(a)(11)(B).

Here, the court concluded that the “main purpose” of Tennessee Code Annotated § 36-2-311(a)(11)(A) is “to protect fathers who have never had knowledge of their children.” The trial court went on to find that Father clearly knew about the “existence” of Child because he visited Child right after she was born. The trial court acknowledged that Mother’s “inappropriate conduct . . . contributed to [F]ather’s . . . failure to be involved in [C]hild’s life,” but stated Father also had a “duty” to come to Tennessee to “check out the misleading allegation of [M]other” regarding Child’s death. The trial court concluded that the factors in Tennessee Code Annotated § 36-2-311(a)(11)(A) were inapplicable, and therefore, it ordered retroactive child support from the date of Child’s birth.

After reviewing the record, the Court of Appeals concluded:

After carefully reviewing the entire record and the applicable law, we respectfully disagree with the trial court’s conclusion that a deviation was inappropriate in this case. Tennessee Code Annotated § 36-2-311(a)(11)(A) instructs courts to consider the extent to which the father did not know of, and whether the mother or caretaker intentionally withheld information regarding, “the existence of the child, the birth of the child, his possible parentage of the childor the location of the child.” Admittedly, Father was aware of [Child’s] existence, in addition to her birth and location, when he visited her in 1993, but due to the uncontradicted evidence that Mother told Father that [Child] died shortly thereafter, he was unaware of [Child’s] existence or location in the years that followed. Moreover, Tennessee Code Annotated § 36-5-101(e)(1)(A) allows the court to consider “the equity between the parties” even where the factors described in § 36-2-311(a)(11)(A) do not apply. Thus, the trial court erred in its apparent conclusion that it was only authorized to deviate from the guidelines in a situation in which a father had never known of the existence of his child.

Here, a consideration of the aforementioned factors and the “equity between the parties” leads us to conclude that it would be inequitable to require Father to pay retroactive child support when the conduct of Mother, and Grandmother, prevented Father from knowing of [Child’s] existence or taking responsibility for supporting her.

Child support is, of course, intended to benefit the child, not to reward or punish a parent. In this case, because the child is no longer living with Grandmother, an award of retroactive child support from Father to Grandmother would not benefit the child, and in fact would deprive Father of resources that could be used for the child. Under all of these circumstances, an award of retroactive child support would be inequitable.

We find clear and convincing evidence to rebut the presumption in the guidelines that child support should be awarded retroactive to the date of [Child’s] birth. In our opinion, application of the guidelines would be unjust and inappropriate in order to provide for the equity between the parties.

Burnine v. Dauterive (Tennessee Court of Appeals, Western Section, July 27, 2011).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, 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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