Child Support Modification Reversed for Lack of Notice in Williamson County, TN: Solima v. Solima

surprise!Facts: Mother and Father, parents of Child, divorced many years ago. Mother was designated the primary residential parent of Child.

After Mother proposed relocating to Texas, Father moved to modify the parenting plan seeking, in part, to be designated as the primary residential parent.

After the hearing, the trial court did not name Father the primary residential parent but modified the schedule to increase Father’s parenting time.

The trial court also modified child support by imputing additional income to Father after finding he was willfully underemployed.

Father appealed.

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

Father argued the trial court erred by imputing additional income to him based on a finding of willful underemployment because that issue had not been raised in the pleadings. Mother did not allege that Father was voluntarily or willfully underemployed; therefore, Father argued he was not put on notice the issue would be tried.

The Tennessee Rules of Civil Procedure require all pleadings in which a party sets forth a claim for relief to contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks. This rule establishes a liberal notice pleading standard, which recognizes that the primary purpose of pleadings is to provide notice of the issues presented to the opposing party and to the court. Providing notice of the issues to be tried allows the opposing party to adequately prepare for trial.

Historically, courts strictly enforced the rule that irrespective of what may be proved, a court cannot decree to any plaintiff more than he claims in his pleadings. Because the purpose of pleadings is to give notice to all concerned regarding what may be adjudicated, a judgment beyond the scope of the pleadings is beyond the notice given the parties and thus should not be enforced.

This rule has relaxed over time, and today the Tennessee Rules of Civil Procedure provide that, except with respect to default judgments, “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings” as long as the propriety of such relief was litigated and the opposing party had the opportunity to assert defenses against it. Accordingly, parties may agree to try matters not asserted in the pleadings.

After reviewing the record, the Court concluded:

We agree with Mother that Father was on notice that child support would be modified if he were designated the primary residential parent or if the change in the days allocated to each parent under the parenting schedule created a significant variance in the amount of child support owed. In fact, Father submitted a proposed parenting plan that modified the child support section contained in the April 2013 parenting plan; however, that was based on a change in parenting time. The foregoing notwithstanding, notice that child support may be modified based on a change in the primary residential parent or parenting time does not, without more, put a party on notice that he or she is alleged to be underemployed and that the court may impute additional income to him or her when calculating or modifying child support….

[E]vidence that is relevant to modification of child support based on a change in the amount of parenting time may be very different from the evidence that is relevant to whether a party is voluntarily or willfully underemployed.

Based on these legal principles, we have concluded that Father was not on notice that the issue of voluntary underemployment would be tried. Therefore, the trial court erred by imputing income to Father for calculating his basic child support obligation. Nevertheless, because each party’s respective parenting time was modified by the trial court, it was incumbent on the court to determine whether that created a significant variance and, if so, to modify child support pursuant to the guidelines.

Accordingly, the trial court’s calculation of child support based on Father’s imputed income was reversed.

K.O.’s Comment: Compare the analysis in this case with the 2-1 decision on a similar child support notice issue in Leonardo v. Leonardo.

Reconciling this opinion with the opinion in Leonardo, it appears the rule is that an action to modify a parenting plan puts the parties on notice that child support may be modified based on changes in parenting time but does not put them on notice that child support may be modified for some other reason, such as willful underemployment.

What about work-related childcare, the child’s portion of the health insurance premium, changes in upper deviations like private school tuition, etc.? Does a parenting plan modification put the parties on notice that these matters will be reviewed if the parenting plan is modified? Or is the notice limited to the effects of a change in parenting time?

Solima v. Solima (Tennessee Court of Appeals, Middle Section, July 30, 2015).

Information provided by K.O. Herston: Knoxville, Tennessee 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.

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