Posted by: koherston | June 9, 2014

Calculation of Parenting Time for Child Support Reversed in Nashville Divorce: Hooper v. Hooper

Facts: After approximately 9 years of marriage, Father and Mother divorced. They have five children.

The trial court designated Father as the primary residential parent. Mother was awarded parenting time every other Thursday from 6:00 PM until the following Monday morning when she took the children to school or to their grandmother’s home. Mother also received parenting time every other Wednesday from 6:00 PM until the following morning when she took the children to school or to their grandmother’s home. She also received half of the school holidays and every other week during the summer.

To determine child support, the trial court had to determine Mother’s parenting time. The trial court stated:

[W]hen counting days, the day starts at midnight. Some lawyers like to tailor it to try to give their client the benefit of additional days but we are going to keep it simple. We are going to start a day just like they have always been counted, and they start at midnight. Whoever has the children for 12 hours and one minute with a 24-hour period, with the 24-hour period beginning at midnight — that is the person that gets credit for that day.

Using this methodology, the trial court determined Mother’s parenting time to be 110 days.

Mother appealed.

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

Mother argued the trial court erred in calculating the number of days she exercises parenting time for the purpose of determining her child support obligation. She argued a proper calculation results in a finding of 146 days of parenting time rather than 110.

The Tennessee Child Support Guidelines define “day” for the purposes of determining calculating child support as follows:

“Days” — For purposes of this chapter, a “day” of parenting time occurs when the child spends more than twelve (12) consecutive hours in a twenty-four (24) hour period under the care, control or direct supervision of one parent or caretaker. The twenty-four (24) hour period need not be the same as a twenty-four (24) hour calendar day. Accordingly, a “day” of parenting time may encompass either an overnight period or a daytime period, or a combination thereof.

After reviewing the record, the Court reasoned:

Mother should have been credited with 146 days of parenting time in the calculation of her child support obligation. Applying [the Child Support Guidelines], Mother’s parenting time beginning on Thursday at 6:00 p.m. until 7:00 a.m. the following Monday when Mother takes the children to school is calculated at four days; similarly, Mother’s mid-week visitation from Wednesday at 6:00 p.m. until 7:00 a.m. on Thursday is calculated at one day. As a result of the error in calculating Mother’s parenting time, we vacate the award of child support and remand the case for recalculation of the child support.

Accordingly, the trial court was reversed.

K.O.’s Comment: Lawyers should note the Child Support Guidelines allow periods of less than 12 hours to be aggregated into a “day” for purposes of calculating parenting time. Section 1240-2-4-.04(7)(3) states:

Except in extraordinary circumstances, as determined by the tribunal, partial days of parenting time that are not consistent with this definition shall not be considered a “day” under these Guidelines. An example of extraordinary circumstances would include a parenting situation where the ARP is scheduled to pick up the child after school three (3) or more days a week and keep the child until eight (8) o’clock p.m. This three (3) day period of routinely incurred parenting time of shorter duration may be cumulated as a single day for parenting time purposes.

Hooper v. Hooper (Tennessee Court of Appeals, Middle Section, April 25, 2014).

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


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