Facts: The parties divorced after an eight-year marriage. Mother was designated the primary residential parent, and Father was awarded 90 days of parenting time each year. Years later, Father filed a petition seeking modification of his child support obligation that raised several issues. The only issue that interests me is whether the court should include alimony Mother receives from Father as part of her income for child support purposes.
The trial court included the alimony Mother receives from Father as part of Mother’s income on the child support worksheet. Mother appealed.
On Appeal: The Court of Appeals reversed the trial court.
The Child Support Guidelines provide, in pertinent part, that the
[g]ross income of each parent . . . shall include all income from any source (before deductions for taxes and other deductions such as credits for other qualified children), whether earned or unearned, and includes, but is not limited to the following:
* * * * *
(xxi) Alimony or maintenance received from persons other than parties to the proceeding before the tribunal.
(Emphasis added.) Curiously, Husband tried to defend the trial court’s ruling by relying upon a case that predated the current Child Support Guidelines, when “income” was defined differently. As one would expect when presented with this unusual argument, the Court held that “[t]he plain language of the Guidelines expressly excludes from the recipients income for child support purposes those alimony payments paid by the other party to the current proceeding.”
Accordingly, the trial court was reversed.
K.O.’s Comment: This case presented an issue of first impression in Tennessee. The poor argument by Husband predictably led to what I believe is the wrong conclusion by the Court. It does not appear that Husband argued that the trial court’s interpretation of the Guidelines is entirely consistent with the current Child Support Guidelines and Tennessee law of statutory construction, which I think it is.
The Court of Appeals recently reaffirmed that “the Child Support Guidelines’ use of ‘includes but is not limited to’  gives[s] a broad definition of gross income, which is not limited to the enumerated categories of ‘wages, salaries, commissions, bonuses.’” Lovlace v. Copley. The Child Support Guidelines are very precise about exactly what is to be excluded from a parent’s gross income, e.g., child support received for the benefit of children from another relationship, public assistance benefits, a child’s income, etc. A parent’s receipt of alimony is not included in the list of items to be excluded from gross income. By its express language, the Child Support Guidelines require the inclusion of “all income from any source,” which necessarily includes the receipt of alimony because it is not specifically excluded.
Further, the alimony payments are taxable to Mother and deductible by Father. Not only should the monthly alimony payment be added to Mother’s gross income, but the payments should be deducted from Father’s gross income.
The Court of Appeals has observed that “[t]he fairness of a child support award depends on an accurate determination of both parents’ gross income or ability to support.” Massey v. Casals. By failing to adjust the parents’ gross incomes to reflect the court-ordered alimony payments, the resulting child support obligation does not reflect the parents’ respective abilities to provide support.
Making a distinction between alimony received from a prior spouse (which is considered income to the receiving parent) and alimony received from the spouse in the present action (which is not considered income to the receiving parent) makes little sense, as long as the alimony paid by the spouse in the present action is deducted from income. In both cases, the court is properly considering the financial resources available to both parents. Excluding alimony from consideration is illogical, especially where alimony can be a significant financial resource. I am hopeful that consideration of these arguments will someday persuade the Court to reconsider this decision.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.
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