Facts: Mother and Father are the unmarried parents of Child.

All the way back in 1999, the trial court approved the parties’ agreed order establishing paternity, awarding custody to Mother, ordering Father to pay Child’s birth expenses and medical insurance, and stating that the parties agreed no additional child support should be owed.

Despite this agreement and order, Father made monthly payments to Mother over the next 13 years totaling $61,555.

In 2012, Mother filed a petition to establish ongoing child support and receive child support retroactive to Childbirth in 1997.

The trial court found the 1999 agreed order was void and ordered Father to pay retroactive child support of $105,359 plus Mother’s attorney’s fees in the amount of $17,000.

Father appealed.

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

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.

Nonetheless, Tennessee Code Annotated § 36-5-101(j) permits an agreement as to child support so long as it is

• in writing,
• approved by the court,
• incorporated into a court order, and
• contains the parties’ acknowledgment that they may not alter the agreement without court approval.

The Court reversed the trial court’s ruling on the validity of the 1999 agreed order, holding that the 1999 order

did not entirely relieve Father of his obligation to remit support when he retained the possibility to maintain the cost of medical insurance or to remit payment for future medical expenses. There is also no evidence of an agreement not to seek support in the future should a substantial and material change in circumstances occur. To the contrary, the evidence reflects that Father remitted monthly payments to Mother until she filed a new petition to set child support. Additionally, the court’s failure to issue a factual finding justifying the deviation from the child support guidelines does not render the 1999 order subject to attack when the time for direct appeal of the order passed. With these considerations in mind, we hold that the 1999 order was final and not void on its face and that the trial court’s setting of retroactive child support was an impermissible modification of the 1999 order.

Thus, the award of retroactive child support was reversed. The Court also reversed the award of Mother’s attorney’s fees.

State ex rel. Rogers v. Lewis (Tennessee Court of Appeals, Western Section, October 21, 2016).

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