Posted by: koherston | February 20, 2017

No Wage Assignment for Child Support and Changing Child’s Last Name Reversed in Clinton, TN Parenting Dispute: Howell v. Smithwick

tennessee divorceFacts: Mother and Father are the unmarried parents of Child.

Within a week of Child’s birth, Father filed a petition to establish paternity and a parenting schedule. An agreed temporary parenting plan was entered.

Later, disputes regarding parenting and contempt landed the parents back in court.

The only issues I find noteworthy are the trial court’s decision (1) to not require Father to pay child support via a wage assignment, and (2) to change Child’s last name to Father’s last name.

Mother appealed.

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

Wage assignment and child support. Mother argued the trial court erred in failing to order Father to pay child support by wage assignment.

Tennessee Code Annotated § 36-5-501 requires that a wage assignment for the payment of child support is required in every case regardless of whether child support payments are in arrears. There are two exceptions to this rule:

  • if there is a written finding that it is not the child’s best interest to require a wage assignment, or
  • if there is a written agreement by both parties that provides for alternative arrangements, which agreement must be reviewed and approved by the court.

The Court agreed with Mother that it is error not to require an income assignment from Father:

In the present case, there is no written agreement between the parties for alternative arrangements for the payment of child support. As to the first exception, the trial court’s order does not contain written findings setting forth good cause to excuse Father from wage assignment.

Thus, the trial court’s decision not to order Father to pay child support by wage assignment was reversed.

Changing Child’s last name. Mother argued the trial court erred in changing Child’s surname to Father’s surname.

Tennessee Code Annotated § 68-3-305(b)(1) requires that the last name of a child born to an unmarried mother shall be the surname of the mother, the mother’s maiden surname, or a combination of those two surnames. A child’s surname does not change as the result of a paternity determination unless the court so orders.

Tennessee courts should not change a child’s surname unless the change promotes the child’s best interest. Among the criteria for determining whether changing a child’s surname will be in the child’s best interests are:

  • a child’s preference,
  • the changes potential effect on the child’s relationship with each parent,
  • the length of time the child has had its present surname,
  • the degree of community respect associated with the present and proposed surname, and
  • the difficulty, harassment, or embarrassment that the child may experience from bearing either its present or its proposed surname.

The parent seeking to change the child’s surname has the burden of proving that the change will further the child’s best interests. The amount of proof required to justify the change is not insubstantial. Minor inconvenience or embarrassment is not sufficient. Likewise, the mere preference of a parent is not a reason to justify a name change under the statute.

At the trial, Father argued, “I want my daughter growing up having my last name, you know, having, you know, relation to the last name. It doesn’t make sense to me why [Mother] wouldn’t want her daughter to have her father’s last name, but her sisters’ dad’s last name.”

The trial court found Mother’s history of thwarting Father’s parenting time was also a consideration, as well as her hostility towards Father and his family. Based on this history, the trial court reasoned that changing Child surname would strengthen the relationship between Father and Child.

The Court rejected this reasoning, explaining:

[T]he sole reason for the trial court’s decision to change the child’s surname to Father’s surname was its concern over Mother’s previous attempts to thwart the relationship between Father and child and its belief that changing the child’s surname would somehow strengthen the relationship between the child and Father. The burden of proof was upon Father to support a finding that a change of surname would serve the best interest of the child. We find no evidence in the record to support a conclusion that changing the child’s surname to Father’s surname would improve the relationship between Father and the child.

Thus, the trial court decision to change Child’s last name to Father’s last name was reversed.

Howell v. Smithwick (Tennessee Court of Appeals, Eastern Section, February 1, 2017).

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


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