Facts: Husband and Wife divorced after 43 years of marriage. They adopted their biological grandson, who was 12 years old at the time of divorce.

Husband and Wife agreed on a permanent parenting plan. The trial court set Husband’s child support obligation.

The trial court refused to order an income assignment of Husband’s military retirement pay — which was Husband’s main source of income — to secure the payment of child support.

Wife appealed.

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

Tennessee Code § 36-5-501(a)(1) provides:

For any order of child support issued, modified, or enforced on or after July 1, 1994, the court shall order an immediate assignment of the obligor’s income, including, but not necessarily limited to: wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, profit sharing, interest, annuities, and other income due or to become due to the obligor.

Tennessee Code § 36-5-501(a)(2)(A) says:

Income assignment under this subsection (a) shall not be required:
(i) If, in cases involving the modification of support orders, upon proof by one party, there is a written finding of fact in the order of the court that there is good cause not to require immediate income assignment and the proof shows that the obligor has made timely payment of previously ordered support. “Good cause” shall only be established upon proof that the immediate income assignment would not be in the best interests of the child. The court shall, in its order, state specifically why such assignment will not be in the child’s best interests; or
(ii) If there is a written agreement by both parties that provides for alternative arrangements. Such agreement must be reviewed by the court and entered in the record.

Husband argued the trial court had good cause for declining to order income assignment. Specifically, he argued in income assignment might prevent him from timely paying the parties’ mortgage, which would negatively impact both parties’ financial futures. Further, Husband noted there were no allegations he had ever failed to pay any ordered or requested child support on time.

The Court of Appeals rejected Husband’s argument, holding:

Section 36-5-501(a)(2)(A)(i) only appears to apply when a party is seeking a modification of a previously ordered child support award. From our review of the record, the child support award contained in the final decree of divorce was the first child support award ordered by the trial court. Accordingly, this proceeding did not involve a modification of a support order. Under these circumstances, Tennessee Code § 36-5-501(a)(1) clearly requires the trial court to order income assignment. The trial court’s failure to do so, therefore, is error.

Accordingly, the trial court was reversed.

K.O.’s Comment: Compare this case with State ex rel. Rickard v. Holt, where the Court of Appeals affirmed the trial court’s finding that good cause existed for not issuing a wage assignment to secure the payment of child support.

Horine v. Horine (Tennessee Court of Appeals, Eastern Section, November 24, 2014).

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