Posted by: koherston | October 17, 2011

Support for Severely Disabled Child: Shaw v. Shaw

Facts: Mother and Father divorced in 2006. At the time of divorce, their severely disabled child was 18 years old. After a trial, the trial court ordered Father to pay child support, even though the parties’ child was over 18 and, therefore, emancipated. In 2010, Mother filed a petition to increase Father’s child support. After a hearing, the trial court set Father’s child support. Father appealed.

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

At the time of the parties’ divorce, the operative statute, Tennessee Code Annotated § 36-5-101(k), provided as follows:

(k)(1) Except as provided in subdivision (k)(2), the court may continue child support beyond a child’s minority for the benefit of a child who is handicapped or disabled, as defined by the Americans with Disabilities Act, until such child reaches twenty-one (21) years of age.

(2) Provided, that such age limitation shall not apply if such child is severely disabled and living under the care and supervision of a parent and the court determines that it is in the child’s best interest to remain under such care and supervision and the obligor is financially able to continue to pay child support. In such cases, the court may require the obligor to continue to pay child support for such period as it deems in the best interest of the child.

(3) In so doing, the court may use the child support guidelines.

Because § (k)(1) says the court may “continue” child support beyond age 18, the statute was interpreted to limit a court’s power to those cases where the disabled child was a minor at the time of divorce. If the parties divorced after the disabled child had turned 18, it was held that the statute did not permit the award of child support.

In 2008, § (k)(2) was amended to address this issue by adding the following language:

provided, however, that, if the severely disabled child living with a parent was disabled prior to this child attaining eighteen (18) years of age and if the child remains severely disabled at the time of entry of a final decree of divorce or legal separation, then the court may order child support regardless of the age of the child at the time of entry of the decree.

Based on the foregoing, the Court determined that the original order in 2006 was made without the legal authority to do so and was, therefore, void.

In sum, despite the 2008 amendment to Tennessee Code Annotated § 36-5-101(k), we conclude that the 2006 divorce decree was void to the extent that it required Father to pay child support for [Child]. We likewise conclude that the 2010 order modifying the 2006 decree and increasing Father’s child support obligation cannot be viewed in isolation as a valid child support order pursuant to the 2008 amendment. The 2010 order was based at least in part on the evidence presented at the 2006 proceedings and the findings stated in the 2006 divorce decree. Because the 2010 order was simply a continuation and modification of a void child support order, it must be vacated as well.

Father originally asked to be reimbursed for all the child support paid pursuant to the now-void order. At oral argument on appeal, however, Father withdrew this request.

Shaw v. Shaw (Tennessee Court of Appeals, Western Section, September 21, 2011).

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


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