Facts: Mother and Father are the unmarried parents of Child. After Mother and Father separated, the trial court had to resolve their disputes regarding child custody, visitation, and child support.

During the course of their relationship, Mother and Father lived both together and apart. During one of their periods of separation, the trial court ordered Father to pay child support of $95 per week. Shortly thereafter, Mother and Father reconciled and lived together once again. They separated again several years later.

In her pretrial pleadings, Mother sought retroactive child support and birth expenses from Father.

At trial, Father’s counsel attempted to introduce evidence of Father’s past payments of child support to establish that there was no child support arrearage. Mother’s counsel objected and stated that retroactive child support was not at issue.

Thereafter, neither party introduced evidence on the subject of child support or medical costs associated with Child’s birth.

Accordingly, the trial court did not award retroactive child support to Mother.

Mother appealed.

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

Although Mother affirmatively waived in open court any claim for a retroactive child support or costs associated with the birth of Child, she argued on appeal that she cannot waive retroactive child support, relying on the well-established principle that a custodial parent may not waive the minor child’s right of support.

Tennessee Code § 36-2-311 requires a trial court to determine retroactive child support and liability for Mother’s maternity costs.

It is a well-settled principle that parents must, as a general rule, support their children until they reach the age of majority. A parent’s obligation to support, as well as the child’s right to support, exist regardless of whether there is a court order. The obligation to support a child exists from the child’s birth, and upon entry of an order establishing paternity, the father is liable for support back to that date.

An award for retroactive child support is generally considered to have two purposes: to benefit the parties’ child and to reimburse the custodial parent for contributing more than that parent’s fair share to the child’s support.

The duty of support cannot be permanently bargained away. Tennessee courts have repeatedly found that agreements, incorporated in court decrees or otherwise, that relieve a natural or adoptive parent of his or her obligation to provide child support are void as against public policy. In other words, Tennessee law clearly establishes that a parent cannot wave a child’s right of support.

In this case, however, the Court concluded the facts presented a narrow exception to this well-settled legal principle. The Court explained:

In the present case, the parties did not agree that Father’s arrears, if any, would be forgiven. To the contrary, Mother filed a petition seeking retroactive child support and reasonable expenses for the birth of the child, and Mother was afforded the opportunity to present evidence regarding these claims. However, when Father attempted to introduce evidence to prove that he had fully paid his support obligations, Mother objected to the relevancy of such evidence, and affirmatively represented to the judge in open court that there was no issue with back child support. Accordingly, the trial court ruled the evidence irrelevant. Moreover, not only was Father precluded from introducing proof that he had paid child support, Mother presented no evidence to show an arrearage or any costs she incurred associated with the birth of the child. Furthermore, when the judge ruled from the bench, he asked counsel if he had failed to address any issue, and Mother’s counsel did not ask the court to rule on her claim for back child support or costs associated with the birth. As a consequence, the trial court did not rule on the non-issues.

Based on the above, we have concluded that Mother had the opportunity to present proof at trial in support of her claim, but she failed to introduce any evidence from which the court could find that any support was owed. Moreover, because she objected to Father’s attempt to introduce evidence that he had paid his child support obligations, it would cause an injustice for this court to allow her to now claim that an arrearage is owed. Additionally, Mother announced to the trial court that there was no issue concerning back child support, and, therefore, she did not afford the trial court the opportunity to rule on the issue; accordingly, the issue of back child support cannot be raised for the first time on appeal.

Accordingly, the trial court’s ruling was affirmed.

K.O.’s Comment: To clarify, retroactive child support cannot be waived unless it is waived, in which case it can be waived and is, in fact, waived. Any questions? No? Good.

In re Jayden C. (Tennessee Court of Appeals, Middle Section, March 23, 2015).

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