Retroactive Child Support Modification Reversed in Tennessee: In re Christopher A.D.

Knoxville divorce attorneyFacts: Father and Mother are the never-married parents of Child. Later, Father married Wife. Even later, Mother and Father went back to court to consider modifying Father’s child support obligation. Father falsely testified his business sustained a net loss at the end of the year, and swore his income was only $250 per week. The amount of Father’s child support obligation was set based on his false testimony.

Fast forward a few years and Father and Wife divorce. Wife contacted Mother and told her Father had committed perjury at the child support hearing years earlier by under-reporting his actual income, and she alerted Mother to the existence of Father’s Answer in the divorce action and other relevant public documents.

This led Mother to file a petition for contempt and to modify child support. Mother alleged Father had fraudulently understated his income in the earlier proceeding and failed to disclose his assets in order to avoid paying additional child support, and she asked the court to order Husband to pay her child support “retroactively to the date of the last hearing [years earlier].”

At the trial, Mother introduced evidence showing that Father’s bank account records conflicted with his previous income tax return. Asked to explain the difference, Father said, “I don’t know. My tax lady done this. I don’t know.”

The trial court explicitly stated that Father was not a credible witness and his testimony was not to be believed. On the basis of the evidence in the record of Father’s earning capacity, the trial court imputed income of $50,000 to him years earlier and ordered him to pay retroactive child support in accordance with the Child Support Guidelines. The court calculated what Father should have paid under the Guidelines, subtracted the amount he actually had paid, and ordered him to pay the difference, amounting to $26,526.30 for back child support and statutory interest, as well as $12,982 for attorney’s fees and expenses. Father appealed.

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

Tennessee Code Annotated § 36-5-101(f)(1) provides:

Any order for child support shall be a judgment entitled to be enforced as any other judgment of a court of this state and shall be entitled to full faith and credit in this state and in any other state. Such judgment shall not be subject to modification as to any time period or any amounts due prior to the date that an action for modification is filed and notice of the action has been mailed to the last known address of the opposing parties….

Thus, Tennessee Code Annotated § 36-5-101(f)(1) and its application by the courts prohibit retroactive modification of a child support order prior to the filing of a petition to modify. The Tennessee Supreme Court has held that a child support order is not subject to challenge based on equitable defenses such as fraud. Here, the trial court modified Father’s child support back to the time of the prior child support order. The question, then, is whether an exception exists for misrepresentation of income.

In Hodge v. Craig, the Tennessee Supreme Court recently made clear that the fact that damages awarded for misrepresentation of parentage, i.e., the pecuniary loss caused by the misrepresentation, are measured or calculated by child support previously paid does not convert that award into a retroactive modification of support.

After analyzing the opinion in Hodge, the Court reasoned:

The case before us . . . alleges a misrepresentation of income by Father in a hearing regarding the appropriate amount of child support. We cannot conclude that the holding of Hodge recognizing a claim of intentional misrepresentation of parentage can be read to imply that a court has the authority to retroactively modify a child support order. Neither does its holding that an award of damages for such misrepresentation is not a retroactive modification of child support affect the prohibition of retroactive modification.

The Court reversed the trial court’s retroactive modification but awarded a prospective modification of Father’s child support obligation back to the date Mother’s petition was filed.

In re Christopher A.D. (Tennessee Court of Appeals, Middle Section, November 20, 2012).

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.

6 thoughts on “Retroactive Child Support Modification Reversed in Tennessee: In re Christopher A.D.

    1. The Court of Appeals modified the ongoing support obligation from the date of Mother’s petition instead of the trial court’s decision to extend the modification further back in time to a point before Mother’s petition was filed.

      1. So while the trial court was justified to re-visit the case based on her petition they were not in compliance with TCA in ordering any retroactive awards prior to the date of her filing the petition.

  1. What if roles are reversed?
    Husband did not show up for court for fear of losing his job. Was ordered to pay 2500.00 according to wife’s testimony. Husband was in arrears from day one. They were taking 51% of wages and started off in arrears. Husband never made enough to cover what was ordered. Lost that job ( proven in court) wife harassed his employer and caused him to lose his job. He then only made 1/4 of what he was earning before. Still paying 50% of his wages. Couldn’t afford to go to court to fight. Continued to pay 50% until children aged out. 10 yrs. later ex wife takes him back to court on over 500,000.00 YES five hundred thousand in arrears. He was ordered to pay 1000.00 per month….appealed (considering he only has an eight grade education) He only earns 1600.00. It was reduced to 500.00 per month. I guess my question is, can he do anything about this? He has proven he did not hide anything and payed without malice and did hold up to financial responsibility to his children according to his earnings not on false testimony from ex.
    He needs help. His children aged out in 2009. This was just brought back up in 2016. Is there anything else hat can be done?

  2. After reviewing rulings concerning § 36-5-101(f)(1), and including your statement concerning the Tennessee Supreme Court’s long held assertion that a child support order is not subject to challenge based on equitable defenses such as fraud, I’m curious how the courts would rule on a Rule 60.01 clerical error. As I’m certain you are well aware, but I will include for any readers unfamiliar with Rule 60.01, the rule states the following:

    Clerical mistakes in judgments, orders or other parts of the record, and errors therein arising from oversight or omissions, may be corrected by the court at any time on its own initiative or on motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

    In Bullington v. Hudson, M1999-02772-COA-R3-CV (Tenn. Ct. App. 2000) this case also involved fraud perpetrated by the Father, and the court ultimately ruled that the Mother had incorrectly used Rule 60.01 to correct the amount of child support that was, upon examination, clearly not a clerical error. The courts decision in part stated:

    “In conclusion, we hold that the trial court erred in holding that the May 1990 Agreed Order be corrected pursuant to Rule 60.01. First, the trial court’s order amounted to a retroactive modification of support in violation of Tennessee Code Annotated section 36-5-101(a)(5). Second, to modify the earlier order, the trial court incorrectly used Tennessee Rule of Civil Procedure 60.01 as this was clearly not a clerical error.”

    While trying to determine if any condition exists to retroactively modify a support order, I’m curious if an order for child support could ever be corrected using Rule 60.01, or if any correction would constitute a retroactive modification? What constitutes a correction of a clerical mistake vs a retroactive modification of an existing child support order? For example, if a decimal point was incorrectly placed in a child support amount changing the intended child support from $100.00 to $1.00. This amount was obviously not what the court intended or what the child support guidelines required.

    Even worse, a situation where the final order was filed, but the support amount was completely omitted by clerical error, even though one parent was ordered to pay child support to the other parent but the amount was simply left blank. Since the child support guidelines require a child support amount to be entered:

    1) Would the child support section of the parenting plan simply be void?

    2) Would the child support order be final until the child support amount is included, which would allow for retroactive modification of child support back to the date of the original filing, since it was never finalized but still filed?

    3) Is the amount correctable using Rule 60.01, which would result in a retroactive child support award?

    Both In re Christopher A.D. and Bullington v. Hudson, refer to situations where fraud was involved and the child support amount was based on the income information the court was provided and the parties accepted to be true at the time of the ruling. I’m curious how the court would decide a case when the intention of the court is clear but the amount of child support is an obvious clerical error.

    As a side note, thank you for taking the time to post these blogs. As a person who is aspiring to one day be an attorney myself, I’ve found them to be very insightful and helpful in breaking down complex legal matters into easily understood principles of law.

    1. I haven’t looked into that particular question but my gut instinct is that correcting a clerical error — like a misplaced decimal point — would not constitute a retroactive modification of support.

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